JUDICIAL REVIEW OF VETERANS' CLAIMS

HEARINGS
BEFORE A

SPECIAL SUBCOMMITTEE
OF THE

COMMITTEE ON YETERANS' AFFAIRS

HOUSE OF REPRESENTATIVES
EIGHTY-SEVENTH CONGRESS
SECOND SESSION
ON s

H.R. 282, H.R. 775, H.R. 849, H.R. 852/H.R. 857] H.R. 3263,
H.R. 3814, H.R. 3815, H.R. 4134, H.R.\696, H.R. 5992, and
H.R. 6723

FEBRUARY 20, 21, 26, MARCH 1, AND 5, 1962

Printed for the use of the Committee on Veterans' Affairs

Pages of all hearings are numbered cumulatively to permit a

comprehensive index at the end of the Congress. Page numbers
lower than those in this hearing refer to other legislation.

t) J iT-w— .-.(.W ~*.iVJ I - ^-ft; -~ ' ' ,—j. '

U.S. GOVERNMENT PRINTING OFFICE

80082 0 WASHINGTON : 1962
 COMMITTEE ON VETERANS' AFFAIRS
OLIN E. T E A Q U E , Texas, Chairman
W. J. BRYAN DORN, South Carolina WILLIAM H. AYRES, Ohio
E L I Z A B E T H K E E , West Virginia E. ROSS ADAIR, Indiana
F R A N K W. BOYKIN, Alabama PAUL A. FINO, New York
J A M E S A. HALEY, Florida J O H N P . SAYLOR, Pennsylvania
W A L T E R S. BARING, Nevada CHARLES M. T E A G U E , California
R O B E R T A. E V E R E T T , Tennessee SEYMOUR H A L P E R N , New York
T H A D D E U S J. DTJLSKI, New York JAMES G. FULTON, Pennsylvania
W M . J. RANDALL, Missouri WILLIAM H E N R Y HARRISON, Wyoming
ROLAND V. LIBONATI, Illinois H E N R Y C. SCHADEBERG, Wisconsin
H A R R I S B. M c D O W E L L , JB., Delaware R O B E R T F . E L L S W O R T H , Kansas
HORACE R. KORNEGAY, North Carolina
J O S E P H P. ADDABBO, New York
RAY R O B E R T S , Texas
OLIVEB E . MEADOWS, Staff Director

SPECIAL SUBCOMMITTEE
HORACE R. KORNEGAY, North Carolina, Chairman
J A M E S A. HALEY, Florida J O H N P. SAYLOR, Pennsylvania
J O S E P H P. ADDABBO, New York R O B E R T F . ELLSWORTH, Kansas
II
 CONTENTS
Page
Addabbo, Hon. Joseph P 1972, 1980-1982, 1990, 2016-2019
American Bar Association, Berger, Raoul, chairman, special committee on
courts of special jurisdiction and section of administrative law 1974-1991
American Legion:
Appeals presented by 1948
Corcoran, John J., director, National Rehabilitation Commission. 1943-1961
Mears, John S., legislative representative 1943
Resolution of 1944, 1947, 1948
Workload in Board of Veterans' Appeals 1962-1967
American Veterans of World War II. (See AMVETS.)
AMVETS, Bowman, Garrett J., director, legislative and service depart-
ment 1969-1973
Resolutions of 1973, 1974
Association of Plaintiffs' Trial Attorneys of the District of Columbia, Nuss-
baum, Harold J 1884-1887, 1905-1911
Berger, Raoul. (See American Bar Association.)
Bills and agency reports 1853-1879
Board of Veterans' Appeals:
Cases allowed, percentage, as compared to pension appeal tribunals in
England, 1945-1960 1803
Cases disposed, 1945-1960, analysis of decisions 1802
Cases disposed, compensation and pension, 1961 1802
Decisions, analysis of, 1961 1802, 2035, 2036
Dissents 1803
Reconsiderations 1802
Stancil, James W. (See Veterans' Administration.)
Bowman, Garrett J. (See AMVETS.)
Budget, Bureau of the, letter of 1856
Committee staff:
Counsel, Patterson, Edwin B 1926, 1932, 1933, 2009, 2020, 2027, 2055
Subcommittee counsel, Downer, Adin M 1924,
1925, 1941, 1973, 1985, 1988-1990, 2015, 2016, 2026, 2055
Corcoran, John J. (See American Legion.)
Devine, Hon. Samuel L 1880-1884
Disabled American Veterans:
Cases presented 1933-1936
Freudenberger, Elmer M., national legislative director 1927,
1929-1933, 1936, 1937, 1940-1943
Peltz, Irving, National service officer 1932, 1938, 1939, 1941-1943
Wood, Frank G., assistant national service director for claims 1940-1942
Downer, Adin M. (See Committee staff; Subcommittee counsel.)
Ellsworth, Hon. Robert F 1883,
1911, 1922, 1926, 1936, 1940, 1943, 2025, 2028, 2041, 2042
English System of Judicial Review of veterans' claims, explanation of and
sample cases , 1804-1816
Findings of Fact and Conclusions of Law in Decisions of the Board of Vet-
erans' Appeals," excerpts from 1727-1801
Freudenberger, Elmer M. (See Disabled American Veterans.)
Haley, Hon. James A . . . 1882, 1883, 1885, 1939, 1940,
1942, 1945, 1955, 1993, 1999, 2001-2003
Jones, Norman. (See Veterans of Foreign Wars.)
Kornegay, Hon. Horace R '. 1725, 1879, 1880, 1882-1884,
1887, 1911, 1913, 1918, 1922-1928, 1933, 1936-1945, 1948, 1954,
1955, 1961, 1967, 1969, 1972-1974, 1977, 1980, 1982-1987, 1990-
1992, 1999, 2003, 2013, 2015, 2016, 2020-2028, 2030, 2034-2055,
2062, 2065
m
rv CONTENTS

Page
Lipscomb, Hon. Glenard P., statement of 1991, 1992
Mears, John S. (See American Legion.)
Military Appeals, U.S. Court of:
History, organization and operation 1819-1834, 2028-2030
Law creating I 1817, 1818
Proulx, Alfred C , clerk 2021
Quinn, Hon. Robert E., chief judge 2021-2028
Rules of Practice and Procedure 1835-1852
Ten-year chronology 1825
Nussbaum, Harold J. (See Association of Plaintiffs' Trial Attorneys of the
District of Columbia.)
Patterson, Edwin B. (See Committee staff counsel.)
Peltz, Irving. (See Disabled American Veterans.)
Pension Appeal Tribunal in England, percentage of case allowed, 1945-
1960 1803
Proulx, Alfred C. (See Military Appeals, U.S. Court of.)
Quinn, Hon. Robert E. (See Military Appeals, U.S. Court of.)
Saylor, Hon. John P 1883, 1887, 1908-1911, 1918-1921,
1924-1926, 1940-1943, 1955, 1956-1961, 2003-2015, 2062-2065
Stars and Stripes, editorial on Judicial Review 2061, 2062
Stover, Francis W. (See Veterans of Foreign Wars.)
U.S. courts:
Administrative Office of, letter 1853
Appeals, courts of:
Cases appealed and decisions, 1961 1803
District of Columbia circuit, decisions of 1803
District, total cases and decisions, 1961 1803
Insurance cases pending in, 1961 1804
Military Appeals, Court of. (See separate listing.)
Supreme Court, opinions, 1960 term 1803
Veterans' Administration (see also Board of Veterans' Appeals):
Brickfield, Cyril F., General Counsel 1993-2019,
2034, 2036-2050, 2051-2055
Independent medical expert study 2056-2061
Organization chart 2050
Stancil, James W., Chairman, Board of Veterans' Appeals 2007, 2008,
2012-2019, 2035, 2036, 2038, 2039-2047, 2050-2055
Veterans of Foreign Wars:
Jones, Norman, director, national rehabilitation service 1920-1926
Judicial Review committee, report of 1914-1918
Letter concerning position on Judicial Review 2065
Resolution of 1913-1914
Stover. Francis W., Director, national legislative service 1911-1913,
1918-1920, 1922, 1925
Wood, Frank G. (See Disabled American Veterans.)
 JUDICIAL REVIEW OF VETERANS' CLAIMS

TUESDAY, FEBRUARY 2 0 , 1962

H O U S E OF KEPRESENTATIVES,
SPECIAL SUBCOMMITTEE OF THE
COMMITTEE ON VETERANS' AFFAIRS
Washington, D.C.
The subcommittee met at 10 a.m., pursuant to call, in room 356,
Old House Office Building, Hon. Horace Kornegay, chairman of the
subcommittee, presiding.
Mr. KORNEGAY. The subcommittee will come to order, please.
I apologize for being a few minutes late in getting started this
morning, but I am sure all of you are aware of the occasion, this
startling day in the life of our country, Colonel Glenn's blast off, and
his now being in orbit. I was one that witnessed it by way of tele-
vision and I hope t h a t most of you saw the same thing.
Now we will get down to business.
Without objection I will insert in the record the bills, Veterans'
Administration reports, and other data pertinent to the hearings.
(The material follows:)
Excerpts from House Committee Print No. 118, 87th Congress, "Find-
ings of Fact and Conclusions of Law in Decisions of the Board of
Veterans' Appeals", published August 14, 1961, by the Committee
on Veterans' Affairs
FOREWORD
An explanation of the material contained hereafter is contained
in a letter which was mailed to each of the four major veterans'
organizations on July 14, 1961. The text of the letter follows:
At the conclusion of the hearings on judicial review in the 2d session of the
86th Congress a bill was introduced to provide that decisions of the Board of
Veterans' Appeals should contain findings of fact and conclusions of law separately
stated. Representatives of the Veterans' Administration agreed with this pro-
posal and have undertaken to change the style and content of decisions of the
Board in order to comply with this recommendation.
An identical bill, H.R. 866, was introduced in the 87th Congress and is now
at the White House awaiting Presidential approval. This bill,1 if approved, will
become effective January 1, 1962, and will make it mandatory that all decisions
of the Board after that date contain findings of fact and conclusions of law
separately stated.
You may also recall that in connection with this subject the committee con-
ducted a study of the English system of adjudication of veterans' claims and in
this connection included in the committee report on H.R. 866 a copy entitled
'Statement of the Case" as used in the English system. The "Statement of the
Case" is merely a recitation of the essential facts necessary to a determination
of all issues involved in the appeal. It is prepared in the office where the admin-
' Now Public Law 87-97.
1725
1726 JUDICIAL REVIEW OF VETERANS' CLAIMS

istrative adjudication is made and certified to the appellate tribunal when the
veteran appeals an unfavorable decision. In order to get some idea as to the
suitability of such a system in this country the Veterans' Administration estab-
lished a pilot project in 10 regional offices. In this pilot project the regional
offices undertook to prepare a statement of facts similar to the English "Statement
of the Case" in 10 appealed cases.
In order to obtain a fresh and independent viewpoint as to the sufficiency of
the findings and conclusions of the Board of Veterans' Appeals, the committee
sent copies of the statement of facts as prepared in the regional offices to some
of the leading law schools in the United States. At the request of the committee,
law students at these institutions prepared findings of fact and conclusions of
law and submitted them to the committee to provide a comparison with the
quality of the work being done by the Board of Veterans' Appeals. I t is significant
to note that the law student in each instance has had no previous experience with
veterans' benefits or the laws and regulations relating to that subject.
The committee expects to publish a committee print containing the statement
of facts submitted to the law students, the findings and conclusions prepared by
the law students, and the decision of the Board of Veterans' Appeals in these
cases. Enclosed herewith are three galley proofs of cases that will be included
in the committee print when published.
Knowing of your very deep interest in the adjudication of veterans' claims, I
am submitting them to you prior to publication of the committee print so that
you may have access to the information as soon as possible for your own study.
I shall appreciate it if your rehabilitation service will please review these cases
and give us their opinion of the sufficiency of the findings and conclusions prepared
in each case by the law students and by the Board of Veterans' Appeals.
I understand that the judge advocate general of your organization is a very
able lawyer and I should also appreciate it if your judge advocate will review the
enclosed cases and give us the benefit of his views as to the sufficiency of the
findings and conclusions. While he may not be familiar with veterans' benefits
in general, I believe the viewpoint of a practicing lawyer as to the sufficiency and
adequacy of the findings and conclusions would be of value.
I thank you for your interest and assistance in this important subject and shall
appreciate it if you can return your comments on the enclosed to me not later
than August 1, 1961.
The first four cases in this survey are the cases t h a t were submitted
to the veterans' organizations with the above letter. T h e replies
t h a t were received are published at the end of this print.
The decisions of the Board of Veterans' Appeals with its findings of
fact and conclusions of law and the findings of fact and conclusions of
law prepared b y the law students have been printed in parallel col-
umns so as to provide ready comparison. Additional opinions of
law students have been published thereafter. Following these
opinions are comments of the law students excerpted from their letters
where appropriate. It is hoped the publication will contribute to
improvement in the findings of fact and conclusions of law in deci-
sions of the Board of Veterans' Appeals and thereby to improvement in
the quality of adjudication within the Veterans' Administration.
T h e students who participated in this study are enrolled in law
school at the Universities of Michigan, Florida, Colorado, California
(Berkeley branch), Harvard, Yale, and Georgetown.

S T A T E M E N T O P PACTS P R E P A R E D BY T H E REGIONAL O F F I C E AND
T R A N S M I T T E D T O T H E BOARD O P VETERANS' APPEALS
SUMMARY OP C A S E FOR APPELLATE R E V I E W
ISSUES
1. Restoration service connection for otosclerosis.
MILITARY M E D I C A L R E C O R D
August 7. 1942: Induction examination: Hearing
less than the minimal requirements for class IA.
Hearing right ear 5/20; left car 10/20—placed on hmited
duty.
January 13, 1943: Defective hearing, bilateral, cause
undetermined. AD 5/20; AS 6/20 E P T I .
August 25, 1943: Separation examination—veteran
stated his bilateral nerve deafness was E P T I . Hearing
examination right cor 1/20; left ear 1/20.
August 27, 1943: Veteran separated because he did
not mcot the minimal standards for induction.
V E T E R A N S ' ADMINISTRATION MEDICAL RECORD
October 23, 1943: Service medical records received.
June 12, 1944: VA examination: Hearing right ear
0 feet, left 2 feet. Chronic otosclerosis.
September 4, 1945: VA examination: Auditory ca-
nals negative; tynipani dull, not retracted. Bilateral
conductive deafness.
March 17, 1947: VA examination: Deafness, mixed
type, bilateral. Hearing AD 0/20, AS 2/20.
March 15. 1948: VA examination: Bilateral deafness
AD 0/20, AS 1/20.
April 9, 1943: VA examination: Bilateral deafness
0/20 both ears.
Juno 2 1 , 1949: N P VA examination: Anxiety reac-
tion chronic, manifested by tension and worry over hear-
ing loss with accentuation of his sensory deficit at time
of stress. This examination was conducted at the
request of veteran's service representative.
July 13, 1949: VA examination: Tynipani thickened,
scarred, retracted. AD 0/20, AS 2/20.
February 3, 1953, to March 6, 1953: Boston VA
Hospital report: Hospitalized for duodenal ulcer. I t
was also noted that the veteran had "Almost total
deafness."
July 23, 1954: VA examination: Audiogram average
pure tone decibel loss bone conduction right 52, left 52.
CASE N O . 1
DECISION, CONTAINING F I N D I N G S O P PACT AND CONCLUSIONS O P FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
LAW. O P T H E BOARD O P VETERANS' APPEALS STUDENTS PROM THE STATEMENT OP FACTS WHICH APPEARS
IN T H E FIRST COLUMN
VETERANS' ADMINISTRATION, ISSUE
BOARD OP VETERANS' APPEALS,
May8t 1961. Restoration of servico connection for otosclerosis,
Appellant represented by: Disabled American Vet- dofectivo hearing, and anxiety reaction.
erans.
THE ISSUE
The appeal was timely filed, and is properly before
the Board, from the rating action of the regional office
at Boston, Mass., which severed service connection for
defective hearing with anxiety reaction. I t is con-
tended that defective hearing was aggravated during
service, and that service connection for the psychiatric
disorder should also be maintained as a secondary
disability.
THE EVIDENCE
(The veteran) served from August 1942 to August
1943. At induction he was accepted for limited duty
because of defective hearing which was reported to be
5/20, right, and 10/20, left. The veteran was hospital-
ized because of a cold in January 1943 and hearing was
0.5/20, right, and 6/20, left. On examination for dis-
charge from service hearing was 1/20 in each ear.
Anxiety reaction was not demonstrated in service.
A claim for compensation was submitted in October
1943. When examined in June 1944 hearing was 0 feet,
right, and 2 feet, left; the diagnosis was otosclerosis.
Other postservice examination and hospital reports are
of record and diagnoses include conductive-typo deaf-
ness, mixed-type deafness, tinnitus and nonsuppurative
otitis media. In June 1949 (the veteran) stated that
he was particularly worried over a possible reduction
in force; he described his psychiatric symptoms as
restlessness, palpitation, a feeling of constriction in the
chest and abdomen and pain in the skeletal muscula-
ture. He had always felt conspicuous, foolish, and
inadequate Anxiety reaction, manifested by tension
and worry over hearing loss, was diagnosed. In,
December 1955 air conduction loss was 72 decibels,
right, and 63 decibels, left; bone conduction loss was
45 decibels in each ear.
Servico connection was granted for defective hearing
with anxiety reaction, but on later review such action
was held to be clearly and unmistakably erroneous and
service connection was discontinued.
STATEMENT OF PACTS PREPARES BY THE REGIONAL OFFICE AND
TRANSMITTED TO THB BOARD OP VETERANS' APPEALS
ADJUDICATION ACTIONS
October 26, 1943: Compensation claim filed for
"aggravation of condition of ears."
July 4, 1944: Compensation claim considered. Vet-
eran granted wartime service connection 50 percent for
chronic otosclerosis, hearing right 0 feet, left 2 feet.
April 24, 1947: Claim reviewed on basis of VA
examination of March 17, 1947, which showed corrected
hearing with hearing aid. Evaluation for otosclerosis,
chronic deafness, reduced from 50 percent to 40 percent.
January 25, 1950: The Central Disability Board,
Washington, D.C., corrected the type of service con-
nection for bilateral car disability from service
incurrence to aggravation by service on the basis of
decrease in hearing between induction and separation
from service. Service connection also granted 0 percent
for chronic anxiety reaction, as due to and proximately
the result of service-connected deafness. (Degree of
disability at induction noted as 10 percent.)
August 23, 1954: Review of compensation claim on
basis of VA examination of July 23,1954, increased eval-
uation from 40 percent to 50 percent for deafness;
0 percent for anxiety reaction was continued.
July 30, 1958: Keviewed under Deputy Administra-
t o r ^ Letter of December 14, 1954 (nationally author-
ized review). Found t h a t service records showed right
hearing 5/20 and left 10/20, and no intervening injury
or disease and no treatment in service. I t was pro-
posed t h a t tho grant of scrvico connection for deafness
was clearly and unmistakably erroneous and therefore
should bo severed.
August 7, 1958: Case referred to the Director of
Compensation and Pension, Washington, D . C
March 2, 1959: Director of Compensation and Pen-
sion remanded the cose to obtain record of claimed treat-
ment in service at the Station Hospital, Fort Banks, and
tho Boston Dispensary. I t was pointed out t h a t the
proposed severance of service connection did not include
anxiety reaction. On receipt of the above mentioned
records, tho case was to be reviewed locally and resub-
mitted t o the Director, if in order.
March 24,1959: Additional service records requested.
April 6, 1959: Additional service records received
showing treatment January 13, 1943, to January 18,
1943, for nasopharyngitis, catarrhal, acute, bilateral.
Defective hearing, bilateral, AD 0.5/20, AS 6/20 E P T I .
Becauso no chango in the ear condition was noted, it
was again proposed to sever service connection. I t was
further proposed to sever service connection for the
anxiety reaction.
DECISION. CONTAINING FINDINGS OF PACT AND CONCLUSIONS OP FINDINGS OF PACT AND CONCLUSIONS OF LAW PREPARED BY LAW
LAW, OF THB BOARD OP VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF PACTS WHICH APPEARS
IN THE FIRST COLUMN
THB LAW AND REGULATIONS
to
00
Service connection 'is warranted for disability in-
curred or aggravated in-line of duty during active
service (38 U.S.C. 310). •
38 U.S.C. 353 provides that a preexisting disability
will be considered to have been aggravated u there was
an increase in disability during service, unless the in-
crease was due to natural progress.
38 C P R 3.310 provides t h a t service connection m a y a
be granted for disability which is proximately due t o a
or directly the result of a service-connected disability, w
38 C F R 3.105 provides that service connection, once O
granted, may not be severed except on the basis of
clear and unmistakable error.
>
a
DISCUSSION AND EVALUATION
w
Defective hearing was noted, at induction, but the <
service record shows progressive loss of hearing com- M
mencing in January 1943. Otosclerosis was diagnosod
subsequent to service; however, the clinical findings also
reveal a definite nerve-type deafness, which may not
be said to be duo solely to otosclerosis. The worry O
over loss of hearing was only one symptom upon which
the diagnosis of anxiety reaction was mode, and the
anxiety would have been present even though the <
hearing had been normal. •
B
FINDINGS OF PACT FINDINGS OP PACT SO
1, Defective hearing existed prior to service.
2, There was an increase in defective hearing during
(1) Claimant veteran was inducted August 7, 1942,
placed on limited duty, and separated on August 27,
>
CO
service which was not clearly and unmistakably, as 1943, for failure to meot minimal standards for
distinguished from difference of opinion, due to natural induction.
progress.
3. Anxiety reaction clearly and unmistakably was
(2) Veteran suffered from bilateral defective hearing
E P T I ; the degree of this disability a t induction was
o
not demonstrated during service. later noted as 10 percent by the Central Disability >
4. Anxiety reaction clearly and unmistakably was Board.
not due to defective hearing. (3) Veteran's deafness increased between the time of g
induction and time of separation; his deafness increased 00
further after separation,
(4) Veteran's condition was diagnosed as chronic
deafness, resulting from otosclerosis, on several occa-
sions: J u n e 12, 1944; March 17, 1947.
(5) Veteran was granted wartime service connected
disability of 50 percent for chronic otosclerosis on July
4, 1944; this grant was later reduced from 50 to 40
ercent in 1947 after hearing aid showed corrected
Searing, and in 1950 the typo of service connection was
corrected from service incurrence to aggravation by
service.

May 11, 1059: Case again submitted to the Director
of Compensation and Pension.
M a y 29, 1959: The Director administratively re-
viewed the cose and concurred in the severance of
Bervicc connection lor defective hearing bilateral, also
diagnosed as otosclerosis; and anxiety reaction.
September 16, 1959: Claim reviewed and the sever-
ance of service connection for otosclerosis and anxiety
reaction was effected on the ground that the grant of
such service connection had been clearly and unmis-
takably erroneous.
September 21, 1960: The veteran, through his repre-
sentative, the DAV, filed an appeal from the decision
of the Veterans' Administration sovcring service con-
nection for his deafness and anxiety reaction. The
issue: Restoration of service connection for otosclero-
sis, defective hearing, and the anxiety reaction, directly
due to and secondary to the otosclerosis.
DECISION OP REGIONAL OFFICE AFTER REVIEW OF APPEAL
. AND EVIDENCE
Evidence of record does not warrant restoration of
Bervico for otosclerosis, defective* hearing, and the
anxiety reaction, directly due to and secondary to the
otosclerosis.
Approved as correct by service representative.
CONCLUSIONS OF LAW
1. Service connection for defective hearing was not
clearly and unmistakably erroneous, within the mean-
ing of 38 CFR 3.105, and should be restored.
2. Service connection for anxiety reaction was clearly
and unmistakably erroneous within the meaning of 38
CFR 3.105 and may not be restored.
DECISION
The appeal is allowed to the extent indicated herein.
FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BT LAW
STUDENTS PROM THE STATEMENT OP FACTS WHICH APPEARS
IN TBS PIBST COLUMN
(6) Veteran also suffered from chronic anxiety, due
loss of hearing; this condition was first reflected in a
VA examination on June 21, 1950.
(7) Service connection was severed September 16,
1959, on the- ground t h a t the grant of such service
connection h a d been clearly and unmistakably errone-
ous. The orror was not specified.
(8) The record reflects no specific finding that the
increase in disability either dunng or after service was
duo to the natural progress of chronic otosclerosis.
CONCLUSIONS OF LAW
(1) Veteran's claim is governed by tho provisions for
wartime disability compensation (38 U.S.C. 101(8),
310).
(2) Veteran is presumed to have been in sound condi-
tion at tho time of his induction excopt for dofocts,
infirmities, or disorders noted at tho timo of his induc-
tion examination (38 U.S.C. 311). Partial deafness,
noted at tlie time of tho induction examination, must bo
presumed to havo been aggravated b y activo service in
the absence of a specific finding that tho subsequent
increaso in disability was duo to tho natural progress
of the diseaso (38 U.S.C. 353).
(3) Under the regulations issued by the Administra-
tor, authority to sever service connection, upon tho
basis of clear and unmistakabto error, is vested in
regional offices. Tho burdon of proof of tho propriety
of such severance is upon tho Government (38 CFR
3.9(d)).
(4) There appears to havo been no chango in diag-
nosis, so as to roquiro certification of error in tho prior
diagnosis (38 CFR 3.9(d)). I t is not suggested that tho
presumption of service connection arising on the facts
from the foregoing statute and regulation is not rebut-
table, although any reasonable doubt winch arisos
regarding service connection will bo resolved in fuvor of
tho veteran (38 CFR 3.63(a)). B u t certainly tho mere
conclusion m a t a grant of Bervico connection was
"clearly and unmistakably erroneous" is not sufficient
to overcome tho statutory presumption in tho absence
of any specification of the nature of that error. In th'o
words of tho Administrator's own regulation, claims
founded upon theso statutory presumptions can bo
"denied only on tlie basis of ovidonco which clearly and
unmistakably demonstrates that the disease did not
originate in sorvice, or, if increased in Bervico, was not
aggravated thereby" (38 CFR 3.63(d)).
H[5) Since tho claimant veteran's condition existed
prior to service, but increased in so verity during service,
service connection must bo presumed and stands unre-

STATEMENT OP FACTS PREP ABED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
SUMMARY OF C A S E FOB APPELLATE R E V I E W
ISSUES
1. Restoration of service connection for otitis media,
chronic, bilateral, and defective hearing.
MILITARY MEDICAL RECORD
February 21, 1944: Healed perforation both ear-
drums; notation also "Rejected, USA, 1942, perforated
eardrums."
June 5, 1944: Dispensary notation of perforated
drums. Treated at the E N T clinic for the next 2 days,
gave clinical history of discharging ears in childhood
until 6 years before service and then quiescent since.
Complaints of ears ringing and roaring and inability
to tolorate loud noises. Physical examination showed
tympanic membranes atrophic, bilateral, congenital,
hearing normal. On June 13, 1944, reclassified on
account of ears.
October 13, 1944: Separation examination showed
both eardrums scarred, no drainage, or perforation at
present, hearing, conversational voice 15/15 bilateral.
Veteran was discharged as below minimum standards
for induction.
VETEBANS' ADMINISTRATION MEDICAL RECORDS
May 4, 1945: VA outpatient compensation examina-
tion. No history of medical treatment since discharge.
No discharge from ears, both drums scarred, healed
perforations, complaints of ringing in ears but findings
were not sufficient to make a diagnosis of tinnitus.
Hearing acuity, conversational voice, right 15/15, left
15/15. Diagnosis was chronic nonsuppurative otitis
media, bilateral.
March 16, 1951: VA outpatient compensation ex-
amination. Otitis media, nonsuppurative, chronic,
bilateral, mixed deafness, bilateral, hearing 5/20 right,
5/20 left, conversational voice.
C A S E No. 2
DECISION, CONTAINING FINDINGS OP FACT AND CONCLUSIONS OF FINDINGS OF FACT AND CONCLUSIONS OP LAW PREPARED BY LAW
LAW, OP THE BOABD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN ^4
00
buttod on this record. I t follows that service connec-
tion should bo restored. Since a finding was made,
o
which also stands unrebutted, that the veteran's chronic
anxiety reaction to increasing deafness was related to the
service-connected aggravation of his condition, service
connection should also be restored for the chronic
anxiety reaction (38 CFR 3.101).
VETERANS' ADMINISTRATION,
BOARD OF VETERANS' APPEALS, d
Itfarch U, 1961. Restoration of service connection for otitis media,
THE ISSUE chronic, bilateral, and defective hearing.
The appeal was timely filed( and is properly before
the Board, from the rating action of the regional office >
&i Boston, Mass., which sovercd service connection for
otitis media, with defective hearing. I t is contended
t h a t the affidavit evidence is sufficient to establish
trauma and disease in service which aggravated the <
disability. i—i
THE EVIDENCE K
(The veteran) served from March to October 1944
At induction healed perforations of both eardrums wero O
noted and it was reported that he had been rojectod in
1942, because of perforations. Hearing was 15/15 in
each ear. In June 1944, ho was seen a t the dispensary <
when the perforations were again noted and ear drops H
were prescribed. During consultation it was reported •3
for clinical purposes that the veteran's ears had drained H
intermittently since childhood until 6 years ago. Since
then there had been no drainage, but ringing and roaring
a
of the ears had been constant and he had been unable >
to tolerate loud noises. No referenco was made to
drainago of the ears in service. The tympanic mem-
branes wero atrophic. Hearing was normal. Ho was
w
reclassified because of sensitivity ol the ears to noise.
There was no further reference to any symptom or o
complaint relative to the ears until scarring of both F
drums was noted on the discharge examination.
Drainago was not reported and hearing was 15/15 in C
>O
each ear.
A claim for compensation was submitted in Decem-
ber 1944. When examined in May 1945, healed
perforations were noted, hearing was 15/15 in each ear
and otitis media was diagnosed. Conversational voice
was reported to be 5/20 in each ear when the veteran
was examined in March 1951. In July 1959, speech
reception examination revealed a 6-decihel loss on the
right and a 2-decibel loss on the left.
STATEMENT OF FACTS PBBPABED BY THB BBGIONAL OFFICB AND
TBANSHITTED TO THE BOABD OF VETERANS' APPEALS
ADJUDICATION ACTIONS
December 12, 1944: Compensation claim received.
Deafness both ears, running in ears, M a y 1944, head-
aches.
February 2, 1945: Service medical records received.
Juno 30, 1945: Rating granting service connection
0 percent for otitis media, chronic, bilateral, non-
suppurative.
March 12, 1948: Rating under the 1945 rating
schedule review confirmed 0 percent evaluation as
above.
February 9, 1951: Medical statement from private
physician showing examination and treatment January
22, 1051, cars. Audiogram included. Diagnosis of
defective hearing, mixed type, bilateral, and otitis media.
The physician gave an opinion t h a t the otitis media
with bilateral scarring of both membrana tympani
robably due to otitis media experienced in childhood,
E ut that defective hearing was aue to exposure to loud
noises and blasts incurred while in military service.
April 16, 1951: The following evidence received:
(1) Letter from two service comrades testifying to
veterans' complaints of cars shortly after coming back
from infiltration course where mine exploded near him,
noting complaints of ears aching, ringing, headaches,
that he got cotton from clinic to absorb discharge from
ears, t h a t this discharge from ears was smelly and stained
pillowcase at night, and that veteran was hard of
hearing.
April 16, 1951: Rating decision increasing otitis media
with hearing defect to 30 percent effective February 9,
1951.
August 28, 1958: Rating review under Deputy Ad-
ministrator's letter, Deccniber 14, 1954. Rating under
VA Regulation 1009(D) proposed to sever service con-
nection for otitis media. File transferred to central
office.
March 19, 1959:Central office letter directing regional
offlco to request additional service cluneals.
April 24, 1959: AGO reply (3101 series) no additional
records except miscellaneous sick reports, M a y 26,
May 27, June 7, June 8, 1944, for undiagnosed condi-
tions.
April 28, 1959; Rating of August 28, 1958, confirmed
and case resubmitted to ccntnuoffice.
May 18, 1959: Central office concurred in severance
of service connection for otitis media, chronic, bilateral,
with defective bearing.
May 25, 1959: Veteran given 60-duy letter of notice
under' VA Regulation 1009(D) of proposed severance
of service connection.
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW. OF THB BOABD OF VETERANS' APPEALS
Benjamin Riseman, M.D., examined the veteran in
January 1951 and (the veteran) reported abscessed ears
as a child. No discharge of the ears since childhood
was reported. Dr. Riseman expressed the opinion that
the scarring was duo to childhood otitis media, but that
the loss of hearing, found on his examination, could
have been due to loud noises and blasts in service.
Dr. Riseman has also submitted a subsequent state-
ment relativo to the veteran's ears.
Bert Stocker and Rufus T. Terry, the veteran's
associates in service, reported that (the veteran) com-
plained of eoraches, headaches and ringing of the ears
after a mine explosion on the infiltration course. As a
result the veteran reported to the dispensary and was
given cotton to absorb tho discharge, which had a
strong odor. They reported his pillowcase was soiled
by drainage and that ho was hard of hearing. Thomas
M. Trainor stated t h a t the veteran had no difficulty
hearing prior to service, but did have after service.
Service connection was granted for otitis media, with
loss of hearing, but on later review such action was held
to be clearly and unmistakably in error and service
connection was discontinued.
LAW8 AND REGULATIONS
Service connection may be granted for a disability
incurred or aggravated in lino of duty during activo
service (38 U.S.C. 310).
38 CFR 3.105 provides that service connection, once
granted, may not be severed except on tho basis of
clear and unmistakable error.
DISCUBSION AND EVALUATION
Healed perforations of the eardrums were noted at
induction and the service clinical data and other
evidence of record establish the existence of otitis
media prior to service. Loss of hearing was not
demonstrated in service or on examination in 1945.
Loss of hearing was reported on examination in 1951,
but examination in 1959 revealed essentially normal
hearing. Tho service records contain no reference to
any activo otitis media or unhealed perforations during
service. The only treatment reported was the pre-
scription of eardrops, and it is noted that tho veteran
was sensitive to loud noises. After the treatment in
June 1944, no further reference was made to any
pertinent complaint or symptom. Consideration has
been given to tho lay affidavits, relativo to symptoms
in service, but they are at variance with the Bervice
records. Cotton is often inserted in the auditory
STATEMENT OP FACTS PREPARED BT THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
July 23, 1959: Letter from veteran's friends received
testifying that veteran had no trouble prior to service
but constantly suffered from ears since discharge from
service.
July 23, 1959: Another medical statement from the
physician who saw the veteran in 1951 to the effect that
the findings in his examination of June 23, 1959 were the
same as in 1951.
September 3, 1959: Rating under VA Regulation
1105(A) severing service connection for otitis media,
chronic, nonsuppurative, bilateral, with hearing conver-
sational voice right 5/20 and left 5/20, on the basis of
clear and unmistakable error.
September 14, I960: T h e veteran's letter received
containing informal appeal from the above decision.
October 26, 1900: Formal appeal, form 1-9 received.
Ono issue involved: Service connection for otitis media,
chronic, bUateral, and defective hearing.
DECISION OF REGIONAL OFFICE AFTER REVIEW OF APPEAL
AND EVIDENCE
The evidence does not warrant restoration of service
connection for otitis media, chronic, bilateral, with
defective hearing, there being no evidence to support a
reversal of the decision severing service connection.
Approved as correct by service representative.
DECISION. CONTAINING PINDINCS OF FACT AND CONCLUSIONS OF
LAW, OF THE BOARD OF VETERANS' APPEALS
canals to retain eardrops and to alleviate discomfort
from loud noises.
FINDINGS OF FACT
1. Otitis media clearly and unmistakably existed
prior to service.
2. There clearly and unmistakably was no increase
in severity or aggravation of the preexisting otitis
media during service.
3. Loss o f hearing clearly and unmistakably was not
demonstrated during service.
CONCLUSIONS OF LAW
1. Service connection for otitis media, with defective
hearing, was clearly and unmistakably in error.
2. Restoration of service connection for otitis media,
with defectivo hearing, is not warranted.
FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OP FACTS WHICH APPEARS
IN THE FIRST COLUMN
CO
to
FINDINGS OF FACT
(1) Claimant veteran was inducted on or before
February 2 1 , 1944; his military medical record as of
t h a t date reflects healed perforation of both eardrums-
He was discharged as below minimum standards for
induction after examination October 13, 1944,
(2) Veteran gave a clinical history of discharging o
ears in childhood, and continuing until about C years o
before induction but quiescent since then, at the time
of treatment during service in June 1944. >
(3) Although there was no evidence of suppuration
at the time of initial examination or at the time of
dischargo, evidence of two service comrades shows that 50
suppuration from veteran's ears occurred while he was
in service. The same ovidence reflects complaints of <
the veteran about his cars after a nearby mine explosion,
on his return from infiltration course.
(4) Service connection for otitis media, chronic, bi-
lateral, nonsuppurative, was granted in 1945.
(5) In the opinion of a private physician, after O
examination and treatment in January 1951, the
scarring of veteran's tympanic membranes was prob-
ably due to otitis media experienced in childhood, but <
his defective hearing was due to exposuro to loud
noises and .blasts while in military service. The same H
physician examined the veteran again in 1959 and. »
reaffirmed this opinion.
(6) Evidenco furnished by friends of the veteran
>
indicates that he had no trouble with his ears before
servicej b u t t h a t he has suffered constantly with them
w
since his dischargo.
(7) Deafness of the veteran has apparently increased o1
tr
sinco his discharge. Although his condition has been
diagnosed as otitis media, chronic, no specific finding is
>
reflected by the record that his increase in deafness is
due to the natural progress of the disease- 50
(8) Service connection was severed in 1959 on the
basis of "clear and unmistakable error." The error
was not 6
CONCLUSIONS OF LAW
(1) Veteran's claim is governed b y the provisions for
wartime disability compensation (38 U.S.C. 101(8),
310).
(2) Veteran is presumed to have been in sound con-
dition at the time of his induction except /or defects,

STATEMENT OF CASE FOR APPELLATE REVIEW
ISSUE
1. Service connection for deformity of the right foot
due to osteomyelitis.
MILITARY MEDICAL HECORD
October 5, 1942: Induction examination demon-
strated Ihe cxislenre of osteomyelitis of the right foot,
and u deformity of the big toe. These conditions were
related to the year 19.32, and the veteran was recorded
as a candidate for limited service. He was 66 inches
tall, and weighed 154 pounds. His posture was good.
0ctobcr30, 1942:Sconasan outpatient. A diagnosis
of old osteomyelitis of the right first metatarsal was
made. No treatment was recommended. It was
recommended that the. veteran bo classified for limited
service. His right foot pathology was described as
EPTT.
August 5, 1043: A diagnosis of sprain, right ankle,
was made.
FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
STUDENTS PROM THE STATEMENT OF PACTS WHICH APPEALS
IN THE PIE9T COLUMN
infirmities, or disorders noted a t the time of his induc-
tion examination (38 U.S.C. 311 J, Otitis media and
The appeal is denied. deafness, although E P T r , must bo presumed to have
been aggravated by active service in tho absence of a
specific finding that the increase in severity of voteran's
condition was due to the natural progress of tho discaso
(38 U.S.C. 353; 38 CFR 3.63(i)).
(3) The lay and private medical evidence- of servico
connection producoa in support of this claim is proper
and must bo given duo consideration (38 U.S.C. 354(a);
38 CFR 3.77(b)). Any reasonable doubt with respect
to service connection must be resolved in favor of the
veteran (38 CFR 3.63(a).
(4) The burden of proof is upon tho Government,
where severance of service connection is proposed, to
establish Unit the grant of service connection was on tlio
basis of clear and unmistakable error (38 CFR 3.9(d)).
Certainly tho mere finding that a grant of service con-
nection was "on tho basis of clear and unmistakable
error" does not satisfy this burden of proof in tho
absence of any specification of tho nature of that error.
This is particularly true where tho claim of servico
connection is based not only on a presumption b u t also
on competent lay and private medical evidence support-
ing service connection.
(5) I t follows Unit service connection for otitis media,
chronic, bilateral, and defective hearing should bo
restored.
CASE N O . 3
VETERANS' ADMINISTRATION,
BOARD OV VETERANS' APPEALS,
March 28,1961. Restoration of servico connection for deformity of
Appellant represented by: Disabled American Vet- tho right foot duo to osteomyelitis.
erans.
Witness a t hearing on • appeal: ap-
pellant.
THE ISSUE
The appeal was timely filed, and is properly before
the Boartf, from the rating action of the regional office
at San Francisco, Calif., which severed service connec-
tion for deformity of the right foot. I t is contended
that the disability was aggravated during sen-ice.
THE EVIDENCE
(The veteran) served from October 1942 to January
1944. Kefercnco was made to osteomyelitis of the
right foot at induction and a deformity of the big too
was reported. He was accepted for limited service.
H e was seen at the dispensary in the latter part of
October 1942, for a condition unrelated to the ques-
STATEMENT OP FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
August 7, 1943: Outpatient treatment records show
a diagnosis of osteomyelitis, healed, group I I I — L D no.
December 13, 1943: Outpatient record shows a
diagnosis of osteomyelitis of the right foot. It indicates
that the veteran wanted to ne reclassified. The
following appears as a part of this record: "No E P T I
duty."
December 15, 1943". An outpatient record shows a
diagnosis of osteomyelitis, and is followed by the
following: "No EPTf hosp."
December 25, 1943: Admitted to station hospital
with a complaint of painful right foot. The record
contains a history of onset of swelling and pain of the
right foot in 1932; of its then having drained pus; of
the veteran having been hospitalized for 4 months; of
tho lesion having healed after approximately 1% years;
of tho veteran having worked as a farmer thereafter
until his induction; of the veteran's foot having played
out, forcing him to quit work (this was apparently
prior to induction); and of his being classified for limited
duty after induction, b u t having to perform general
detail work. The record also shows that he was ex-
cused from basic training and " C A L " during the pre-
vious year. He complained of pain behind his right
knee as well as of his right foot. I t was indicated that
the veteran then declared that he could not do the work
required of him. Condition on completion of the case
was unimproved. Diagnosis was deformity of right
foot; shortening of right great toe, secondary to osteo-
myelitis of the first metatarsal in 1932. The diagnosis
was followed by a statement t h a t "excessive standing
on a structurally defective foot has permanently aggra-
vated the pain and deformity proximal to the defect."
Line of duty was " Y e s . " These clinical records fur-
ther show that the veteran was recommended for
O D D ; that LOD was yes, because of the length of
service, and because the condition was considered to
havo been aggravated by military service.
January 6, 1944: Discharged from service on GDD
because of deformity of foot, right, shortening of right
great toe, secondary to osteomyelitis of the first meta-
tarsal. I t was indicated that the veteran had had an
adequate trial of duty; that his last 9Tmonths had been
served in the mess squadron; that he was not adequately
educated or intelligent enough for clerical work; and
that ho was unable to do the only work for which he
was fitted. The C D D shows t h a t the condition was
aggravated in LOD.
VETERANS* ADMINISTRATION MEDICAL RECORDS .
Juno 26, 1948: Initial VA examination conducted.
The report of this examination shows that the veteran
DECISION, CONTAINING FINDINGS OF PACT AND CONCLUSIONS'OP
LAW, OP THE BOARD OP VETERANS' APPEALS
tion at issue, and reference was made to an old osteo-
myelitis of the right first metatarsal; limited service
was recommended. X-ray in July 1943 revealed
marked deformity of the right first metatarsal bone with
associated shortening. The veteran was seen in Au-
gust 1943 because of a sprained ankle and X-ray re-
vealed no evidence of a fracture. In December 1943
ho expressed a desire to be reclassified and was hos-
pitalized for disposition. I t was reported that in 1932
there had been pain and swelling of the right foot as-
sociated with drainage of pus which required 4 months'
hospitalization; the wound healed in 1}( years; as a
farmer, prior to service, the foot would lire and he
would have to quit work. I t was also reported that he
had been excused from basic training and'calisthenics for
the past year and was now unable to perform his duties.
Physical examination revealed one-half-inch shorten-
ing of the right leg; the right foot was 1 to 1% inches
shorter than the left, due to shortening of the right
big toe. Atrophy was not noted. He was discharged
on certificate of disability because of deformity of tho
right foot.
On his claim for compensation, the veteran referred
to osteomyelitis in 1932 with removal of bone, and to
having been excused from drill in January 1943. When
examined in Juno 1944, (the Veteran) stated he had
osteomyelitis prior to service and subsequent to service
he had been employed as a truckdriver. X-ray revealed
obliteration of the joint between the first cuneiform and
tho first metatarsal, irregular destruction of the first
metatarsal phalangeal joint and shortening of the first
toe. Another postservico examination report is of
record.
T h e statement of Paul T. Golden, M.D., refers to
symptoms and treatment subsequent to service.
At the hearing on appeal, the veteran testified he had
been a farmer and truckdriver p rior to service, had been
rejected from service on two occasions because of the
right foot and that during service, even though he was
on limited duty, he had to perform drill and calisthenics
until after he sprained his anklo.
Service connection, by aggravation, was granted for
deformity of the right foot due to osteomyelitis with
shortening of the right big toe, but on later reviow such
action was held to be clearly and unmistakably in error
and service connection was discontinued.
THE LAWS AND REGULATIONS
Service connection m a y be granted for disability
incurred or aggravated in line of duty during active
service (38 U.S.C. 310).
38 C F R 3.105 provides t h a t service connection, once
STATEMENT OF PACTS PREPARED BY TUB REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
has postservico occupations as a helper, oil field equip-
ment, from March 5, 1944, to April 30, 1944, and as a
truck driver from Juno 5, 1944. At the time of examina-
tion the veteran complained of soreness of the right foot
and leg, and of pain in the right foot. Ho limped, favor-
ing tho right foot. Ho gave a history of osteomyelitis
in 1031, and declared that it had been aggravated b y
Bervicc. Examination disclosed shortening of the great
toe due to osteomyelitis of tho first metatarsal. There
was a 1-inch scar over the medial aspect of the great
toe, causing some deformity of the foot. There was no
discharge. X-ray revealed marked deformity and
shortening of the first metatarsal; ankylosis of the first
cuneiform and first metatarsal; irregular destruction of
tho joint surface of the first metatarso-phalangoal joint;
shortening of tho first toe; and some thickening of the
cortex of the second metatarsal. Diagnosis was
deformity of the right foot and residuals, osteomyelitis,
nonsuppurative, symptomatic.
April 24, 1947; The second VA examination was
conducted. It showed that the veteran had been work-
ing as an installation man for a liquified gas company,
from June 5, 1945, to December 31, 1946, and as a killer
of chickens for a poultry company from April 1947. He
complained of his feet and stated that they gave out.
The scar of the great toe previously noted was ugain
described, as was also the shortening of the right great
toe. Tho report shows further that there was a large
callus over the heads of tho second, third, fourth, and
fifth metatarsals, right foot. Tho veteran carried all
his weight on the lateral aspect of tho foot. Ho had
no voluntary control of tho right great toe.
July 7, 1960: Medical statement received from the
veteran's private physician states that he first saw the
veteran in February 1948 on account of a complaint of
swelling of both knees at tho end of a heavy day's work.
Examination then showed some swelling and an altered
gait, protective of the right foot. The veteran's
symptoms were relieved by a modification of his shoe.
This physican states that he was unable to fix the
responsibility for tho veteran's symptoms, definitely,
on any of the preservice, service, or postservico con-
ditions.
July 19, I960: Veteran appeared before the rating
authorities of original jurisdiction and described his
service duties ana their effect on his foot, ankle, leg,
and back.
ADJUDICATION ACTIONS
January 27, 1944: Claim for compensation filed,
based on osteomyelitis in 1932 and re.noval of bono,
with resultant weakness in the right foot. Tho veteran
FINDINGS OF FACT AND CONCLUSIONS OP LAW PREPARED BY LAW
STUDENTS FROM THE BTATEMBNT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
granted, may not be severed oxcept on the basis of clear
and unmistakable error.
DISCUSSION AND EVALUATION
Deformity of the right big toe was noted at induction
and the recorded clinical data, during and after service,
and other evidence of record clearly and unmistakably
establish the existence of a deformity of tho right foot
due to osteomyelitis prior to service. Tho veteran now
states he performed drill and calisthenics until he
sprained his ankle, but he stated on his application for
3
a
compensation that he was excused from drill in January M
1943 and during hospitalization, immediately prior to
discharge, it was reported he had been excused from a
basic training and calisthenics for the post year.
(The veteran) had an acute ankle sprain in service >
which was not severe enough to require hospitalization
and no residuals of the sprain were subsequently w
reported. The service records otherwise contain no
reference to any pertinent trauma during service. <
Tho findings disclosed on X-rays during and after
service may not bo reasonably dissociated from tho old a
osteomyelitis. Tho symptoms noted in service were
similar to those which existed prior to service and were
due to tho preexisting disability of the foot. Active
o
osteomyelitis was not shown during active duty.
<
FINDINGS OF FACT FINDINGS OF FACT H
1. A right foot deformity due to osteomyelitis with (1) Claimant veteran was inducted under an exam- B
shortening of the right big toe clearly and unmistak- ination October 5, 1942, which revealed osteomyelitis SO
ably existed prior to service. of tho right foot and deformity of tho big too. At that
2. Tbero clearly and unmistakably was no increase time it was noted that his posture was good. Ho was
or aggravation of the deformity during service. assigned to limited duty but was required to perform CO
Active osteomyelitis was not present in service. general detail work. He was discharged on C D D on
January 6, 1944, because of deformity of right foot and
shortening of right great toe, secondary to osteomyelitis
a
C
of tho first metatarsal. >
(2) At an examination during service, on December
15, 1943, a Bpecific finding was made that tho shortening
of the right great too was secondary to osteomyelitis of CO
tho right foot in 1932. Specific finding was also made
that tno condition was aggravated by military service,
since "excessive standing on a structurally defective
foot has permanently aggravated the pain and deform-
ity proximal to the defect."
(3) Both before and after service tho veteran was
employed in occupations which required a standing
position (farming, oilfield equipment helper, liquefied
gas company installation man, killer of chickens for CO
poultry company).
en
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
alleged that it was impossible to stand or walk more
than a few hours. Incomplete service records received.
May 8, 1944: Service connection for the veteran's
deformity of the right foot and shortening of tho right
great toe duo to osteomyelitis of the first metatarsal,
was conceded on a basis of presumptive aggravation.
This grant was on the basis of incomplete service
records.
July 7, 1944: Claim reconsidered; decision of M a y 8,
1944, confirmed.
June 2, 1947: Claim reconsidered; decision of M a y 8,
1944, confirmed; service connection for plantar callo-
sities, right foot, denied.
July 24, 1959: Nationally authorized review led to a
proposal to sever service connection of veteran's right
foot pathology, as having been granted because of a
clear and unmistakable error.
April 25, 1960: Letter, VACO, concurring in proposal
to sever service connection for deformity, right foot,
due to osteomyelitis, first metatarsal, with shortening
of right great too.
November 16, 1960: Service connection of tho de-
formity, right foot, due to osteomyelitis, severed, and
disability held not due to service.
December 7, 1960: Veteran appeals from tho VA
decision: Issuo is service connection for deformity of
right foot on basis of aggravation.
January 10, 1061: Statement of accredited represent-
ative indicating that no further evidence was to be
submitted, was received.
DECISION OF REGIONAL OFFICE AFTER REVIEW OF
APPEAL AND EVIDENCE
1. Service connection for deformity of the right foot
cannot now bo conceded (a) because evidence has here-
tofore been held insufficient to show that aggravation
of the veteran's right foot disability occurreu in service
and (b) because this board cannot hold on tho basis of
clear evidence, as distinguished from a difference of
opinion as to the weight of the recorded evidence, that
the decision appealed from is unmistakably wrong.
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
LAW, OF THE BOARD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
(4) Service connection was conceded on M a y 8, 1944, 00
on the basis of presumptive aggravation. Although
this grant was made on the basis of incomplete records,
several subsequent considerations of tho case confirmed
this decision: the subsequent confirmations were pre-
sumably made on tho basis of complete records.
(5) Increase in tho severity of the veteran's disability
occurred both during and after service
(6) On November 8, 1960, servico connection of the
deformity of the right foot, duo to osteomyelitis, was c!
severed. a
CONCLUSIONS OF LAW CONCLUSIONS OF LAW i-i
g
Service connection for deformity of the right foot duo (1) Veteran's claim is governed by the provisions for
wartime disability compensation (38 U.S.C. 101(8), >
to osteomyelitis with shortening of the right big toe was
clearly and unmistakably in error and may not be 310).
restored. (2) Veteran is presumed to have been in sound con- ra
DECISION dition at tho time of his induction except for defects,
infirmities, or disorders noted at the time of his induc- <
Tho appeal is denied. tion examination (38 U.S.C. 311). A history of
osteomyelitis of tho right foot and deformity of tho H
right great too having been so noted, tho only ques-
tion involved in tho claim is whether or not the sub-
sequent increase in severity of this condition is to bo
presumed to have service connection on the basis of
o
*i
aggravation. Such aggravation must be presumed in
the absence of a specific finding that tho increase in <i
disability was duo to the natural progress of the disease B
(38 U.S.C. 353; 38 CFR 363(i)). A finding to this H3
effect was made in tho examination of December 15, H
1944, but tho same finding indicates that excessive SO
standing on tho structurally defective foot perma- >
nently aggravated tho pain and deformity. The
record therefore must be taken to show an increase in w
the disability, resulting partly from the natural progress
of the disease and partly from the performance of tho
duties to which the veteran was assigned while in serv-
ice. I t appears that the veteran was assigned to
9
>
limited duty, and although ho may have been excused i—i
from performance of some duties of a physical nature,
he was nevertheless required to perform duties which
required excessive standing. Servico connection on
the basis of aggravation must therefore bo conceded.
(3) Since the nature of veteran's employment both
before and after service also required a standing posi-
tion, at least to a considerable extent, it is quito possible
if not probable that this work has also resulted in
aggravation of the disability. This question, however,
is irrelevant to the issue of service connection; it is
rather a matter for the rating board in arriving at a
decision concerning the degree of disability presently
existing which is attributable to the veteran's service.

STATE SERVICE OFFICE,
S T . PETERSBURG VA REGIONAL O F F I C E ,
February 9, 1961.
Memorandum to Adjudication Division.
As tho veteran's accredited representative we are in
agreement, in the main, with the facts as stated in the
case for appellate review.
Wo feel, however, that insufficient consideration has
been given to the microscopic report of the eye, dated
July 31, 1945, which shows chronic keratitis, cl ronic
uveitis, calcified cataract, detachment gliosis and calci-
fication of retina; intraocular hemorrhage; ossification
of choroid; pthisis bulbi, and the probability of existent
infection to tho eye, which should concede to aggrava-
tion.
A. W. KRUEGER,
Assistant State Service Officer.
STATEMENT OF C A S E FOR APPELLATE R E V I E W
1. Restoration of service connection for blindness and
removal of left eye.
MILITARY MEDICAL RECORDS
December 18, 1942: Entrance examination vision left
eye nil, degenerated left oyo.
April 9 to 15, 1943; H R tonsilitius acute follicular
bilateral.
October 8 to 11, 1943: H R febricula mild.
November 5,1943: Routine classification examination
left oyo blind; pthisis bulbi left.
May 19 to Juno 21, 1945: HR, pthisis bulbi, left,
result of old injury incurred when cap exploded and
struck in eye. Examination shows gradual change in
oppcaranco of iris and gradual recession of eyeball;
enucleation dono May 24, 1945. Transferred to
McGuiro General Hospital June 21, 1945.
Juno 21 to July 9,1945: H R ophthalmosterisleft eye.
July 29, 1945: Discbarge examination enucleation
O.S. left eyo had been injured prior to entering service.
Began to give more distress in Iran, therefore it was
removed. Form 53-55 dischargo shows veteran served
FINDINGS OF FACT AND CONCLUSIONS OP LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
(4) Service connection should thercforo bo restored
for deformity of the right foot on tho basis of aggrava-
tion.
C A S E No. 4
V E T E R A N S ' ADMINISTRATION,
BOARD OF VETERANS' APPEALS,
April 7, 1961. Restoration of service connection for blindness and
Appellant represented by •. Veterans of Foreign Wars removal of left oyo.
of the United States.
O
THE ISSUE
M
The appeal was, timely filed^ and is properly before
the Board, from the rating action of the regional office
a
at St. Petersburg, Fla., which severed service connection >
for residuals of removal of left eye. I t is contended
that tho heat and/or sand in Iran aggravated the left
eve and necessitated its removal. I t is also contended
that the microscopic report on the eye indicates an <
active disease of the eye during service.
THE EVIDENCE
(The veteran) served from December 1942 to July 1945. O
Ho was overseas approximately 21 months and departed
for the United States in early February 1945. Degen-
eration and complete loss of vision of the left eye were <
noted at induction. Left phthisis bulbi was reported
in November 1943, when the veteran was examined for
reclassification. He was seen at the dispensary in
M a y 1945, and it was reported he had sustained an
injury to the left eye at age 7: phthisis bulbi and a band-
shaped keratitis were noted; X-ray revealed calcific
densities of the left eyeball. During hospitalization
later in the same month, it was reported for clinical
purposes that since the eye injury there bad been a
gradual change in the appearonce of the iris and reces-
sion of the eyeball. Reference was not made to any
complaint or symptom of an infectious process or injury
of the eye during service. The left eye was enucleated
and miscroscopic examination revealed "chronic ker-
atitis; chronic uveitis; calcified cataract; detachment,
i
gliosis, and calcification of retinoj intraocular hemor-
rhage; ossification of choroid; phthisis bulbi." At time
of discharge from service, the veteran stated that his
eye startea bothering him in Iran.
A claim for compensation was submitted at time of
separation from service. When examined in July
1959 (the veteran) stated that occasionally there was a
mucous discharge from the left socket, which cleared CO
STATEMENT OP FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
E A M E T O leaving United States June 5, 1943, arrival
August 26, 1943; departure February 1, 1945, arrival
United States, March 12, 1945.
July 31, 1945: Microscopic report of eye shows
chronic keratitis, chronic uveitis, calcified cataract,
detachment gliosis and calcification of retina; intra-
ocular hemorrhage; ossification of choroid; phthisis
bulbi.
VETERANS* ADMINISTBATION MEDICAL RECORDS
July 29, 1959; VA examination shows enucleation
left eye, healthy socket. History of mucous discharge
from left eye which clears up in a few days. Anoph-
thalmos left vision right 20/40.
ADJUDICATION ACTIONS
September 17,1945: Rating by Regional Board No. 4,
St. Petersburg, granted service connection with evalua-
tion of 10 percent for residuals of removal left eye with
entitlement to statutory award on account of anatomical
loss of one eye from July 30, 1945. Rating indicated
blindness left on entering service. Begun to give dis-
tress in Iran and therefore it was removed. Service
connection established by aggravation for removal of
left eye.
October 10, 1946: Rating by Regional Board No. 2,
Miami, Fla., reviewed case under paragraph 9, Public
182-79C and the 1945 Statute. Confirmed and con-
tinued prior rating.
August 2, 1948: Rating by Regional Board No. 2,
Miami, Fla., additional clinical records received and
rating of October 10, 1946 was confirmed and continued.
September 14, 1959: Rating with jurisdiction review
DA letter December 14, 1954 under proposal to sever
service connection under VAR 1105(D) for residuals
removal of left eye and for statutory award for anatomi-
cal loss of left eye. I t was held that there was no
evidence of superimposed disease, trauma, or other con-
dition referrable to eyes in service and that aggravation
was not shown and held that in accordance with old
VAR 1063 I service connection was not in order.
June 29, 1960: Administrative review by Director,
Compensation and Pension Service, concurred in pro-
posal to sever service connection for residuals of re-
moval of left eye and entitlement to special monthly
pension on account of anatomical loss of only one eye.
July 11, 1960: Letter to veteran notified of proposal
to sever service connection.
DECISION. CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, OF THE BOARD OF VETERANS' APPEALS
within a few days. On examination, the socket ap-
peared healthy.
Service connection was granted for residuals of re-
moval of the left eye, but on later review such action
was held to be clearly and unmistaknbly in error and
service connection was discontinued.
THE LAW AND-REGULATIONS
Service connection is warranted for disability in-
curred or aggravated in line of duty during active service
(38U.S.C. 310).
38 C F R 3.306 specifies that the usual effects of surgi-
cal intervention for correction of a preexisting disability,
including a poorly functioning organ, will not be con-
sidered to be service connected unless the disability was
otherwise aggravated during service. I t also specifics
that, in determining aggravation, duo regard will be
given to the places, types, and circumstances of service,
with particular consideration being given to combat
d u t y and other hardships of service.
38 CFR 3.105 provides that service connection,
once granted, may not be severed except on the basis of
clear and unmistakable error.
DISCUSSION AND EVALUATION
Degeneration and complete blindness of the left eye
were noted at induction. The service records contain
no reference to the occurrence of any eye disease or
injury during service. The phthisis bulbi reported in
November 1943 represents a descriptive variation of the
degeneration noted at induction. The intraocular
hemorrhage reported on microscopic examination was
occasioned by the operative procedure; the- other
findings reported on that examination pertain to
chronic conditions resulting from an old injury, and no
findings relative to an acute infectious process were
reported. The veteran served overseas for approxi-
mately 21 months without any pertinent complaint of
the eye being reported, other than an examination for
reclassification, and did not report to the dispensary for
another eye examination until more than 3 months
after ho departed for return to the United States.
In the absence of service trauma or disease, aggravation
of an eye disability is determined by the difference in
acuity at induction and that existing at discharge, and
not by the mere fact that an eye was enucleated during
service for some other reason.

September 23, 1960: Rating by Regional Board No.
4, PAGRO under VAR U05A denied service connection
for absence loft eye.
October 17, 1960: Letter to veteran advising that
compensation will bo discontinued effective Novem-
ber 1, 1960.
November 7, 1960: Communication from veteran's
representative for personal hearing.
October 27, 1960: Statement from veteran 8-4138
stating he was blind when he entered service and at
t h a t lime eyo was almost as largo as right eye; that
when he returned from overseas the eyo had deteriorated
so ho could only open eyelid halfway and that Captain
Rosen suggested removing the eyo stating the operation
was necessary. Said deterioration caused by excessive
heat in Iran. He said he objected to the removal but
was advised operation was absolutely necessary for nis
health's sake,
October 27, 1960: Veteran's representative, VFW,
submitted 1-9 appeal, stating that most of veteran's
overscus service was in desert country with deterioration
of same and requests reinstatement of service connection
by aggravation. Hearing was scheduled for Decem-
ber 13, 1960, but veteran did not report for hearing.
Scheduled for January 17, 1961. Form 1-646, state-
ment of accredited representative, sots out the facts
in the case requesting thorough consideration bo given
to the question at issue and statement of veteran sub-
mitted with appeal.
DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP
LAW, OP THE BOARD OF VETERANS' APPEALS
FINDINGS OP FACT
1. Degeneration with complete loss of vision of the
left eye existed prior to service.
2. Microscopic examination in service did not reveal
evidence of an active or progressive infection, but did
disclose residuals of old traumatic and infectious
processes.
3. The absence- of the left eye demonstrated during
service clearly and unmistakably was the usual result
of surgery for correction of a preexisting disability.
4. There clearly and unmistakably was, otherwise,
no increase or aggravation of the preexisting disability
of the left eye during service.
CONCLUSIONS OP LAW
Service connection for residuals of removal of the
left eyo was clearly and unmistakably in error, within
the meaning of 38 C F R 3.105, and may not bo restored.
The appeal is denied.
FINDINGS OF PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
FINDINGS OF FACT
(1) Induction examination December 18, 1942, re-
vealed claimant veteran was totally blind in the- left
eye, and that the eye was degenerated.
(2) During service veteran was stationed in Iran
from August 1943, to February 1945. There is some
opinion evidence of record tending to show that exces-
sive heat in the desert area in which veteran was
stationed caused further deterioration of the eye.
(3) Examination May 19, 1945, revealed a gradual
change in appearance of the iris and gradual recession
of the eyeball. The eyo was enucleated May 24, 1945. M
(4) discharge examination July 29, 31, 1945, showed
chronic kerutitis, chronic uveitis, calcified cataract,
o
detachment gliosis and calcification of retina; intraocu-
lar hemorrhage; ossification of choroid; phthisis bulbi.
Thero is no showing that these conditions are normally w
incident to a degenerated eye or to enucleation. w
(5) Service connection was granted September 17,
1945, with evaluation of 10 percent for residuals of
removal of left eye, with entitlement to statutory award
on account of anatomical loss of one eye.
(6) VA examination July 29, 1959, revealed enuclea-
tion of the left eye, healthy socket. Veteran gave a o
history of muccous discharge from tho left oyo which
clears up in a few days.
(7) Service connection was severed September 23, <
1960. The reason is not specified. w
H
CONCLUSIONS OF LAW W
W
(1) Veteran's claim is governed by the provisions for >
wartime disability compensation (38 U.S.C. 101(8), CD
310).
(2) Since total blindness of the left oye was noted
at the time of tho induction examination there can be o
no question of service connection with blindness of
that eye, cither on a presumptive or factual basis
(38 U.S.C. 311). I t was manifestly erroneous to grant
service connection for purposes of the statutory award
for blindness of one eye, since tho statute, with respect
to loss of one eve, refers onlv to blindness and not to
anatomical loss"(38 U.S.C. 3*14(k)). Any other inter-
pretation of this statute would require t h a t it be read
so as to refer to "anatomical loss or loss of use of * • *
blindness." Since it is absolutely clear from the record
that blindness itself did not result from any service
connected disability and that blindness of tho eye was
not itself such a servico connected disability, the only
question of service connection relates to that disability
arising from residual effects of enucleation. CO

STATEMENT OF C A S E FOB APPELLATE R E V I E W
ISSUES
1. Service connection for duodenal ulcer.
MILITARY MEDICAL RECORD
March 30, 1945: Induction examination—abdominal
viscera normal.
April 22, 1945: Admitted to station hospital, Camp
Gordon, Ga., with complaints of dizziness, burning, and
sore feeling of stomach. He gave a history of stomach
trouble for about 3 years prior thereto, with a previous
diagnosis of peptic ulcer.
M a y 9, 1945: X-rays showed good visualization of
the duodenal bulb ana definite deformity consisting of
indentation above the greater and lesser curvatures
side near the midportion of the bulb. A niche was not
detected, but the report stated that the changes were
due to duodenal ulcer which had been active at ono
time.
June 2, 1945: Discharged from military service with
certificate of disability for discharge, dated Juno 1,
1945, because of duodenal ulcer and ulcer, peptic, of
duodenum, without obstruction. The certificate stated
t h a t the veteran had a history sinco 1942 of recurring
DECISION. CONTAINING FINDINGS OP FACT AND CONCLUSIONS OF FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BV LAW
LAW, OF THE BOABD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
(3) There is evidence of record indicating that, al- ^4
though the veteran's left eye was degenerated at the
time of induction^ Ins service in a desert area caused
further deterioration of the eye. In the absence of a
specific finding that such further deterioration was duo
6
to the normal progress of his condition, this increaso
in the severity of his disability must be presumed to
have been aggravated bv service (38 U.S.C. 353;
38 C F R 3.G3(i)). I t is true t h a t the mere fact of
enucleation will not establish aggravation, but since
service connection depends in such cases on whether
the cause of enucleation was service incurred or ag-
gravated, and since the places of the veteran's service
o
am relevant considerations in determining aggravation,
service connection for the cause of enucleation must
be conceded even though such service connection for
u
blindness would be erroneous (38 CFR 3.G3(i)).
(4) I t follows, therefore, that the statutory award
for anatomical los3 of the left eye was clearly and un-
mistakably erroneous on these facts, and service <
connection in tins respect was properly severed. But M
service connection for any residual effects of enucleation H
itself must be conceded.
C A S E No. 5
o
VETERANS' ADMINISTRATION, ISSUE
BOARD OF VETERANS' APPEALS,
March 30, 1961.
Service connection for duodenal ulcer. <
Appellant represented b y : American Red Cross. H
THE ISSUE
H
fa
The appeal was timely filed, and is properly before
the Board, from the rating action of the regional office on
at Syracuse, N.Y., which severed service connection for
duodenal ulcer. It is contended that the ulcer was non-
symptomatic at time of induction and reactivated O
during service.
THE EVIDENCE
(The veteran) served from March to June 1945. No
pertinent abnormality was reported at induction. He
was hospitalized approximately 3 weeks after induction
with complaints of dizziness, burning, and a sore feeling
in his stomach. I t was reported for clinical purposes
that the stomach distress, with nausea and regurgita-
tion, had been present for 3 years; prior to service he
had been advised ho had an ulcer and was placed on a
bland diet with amphoiel being prescribed. The symp-
toms were increased after heavy ingestion of food and
on plrysical or mental exertion. Gastrointestinal scries
STATEMENT OF PACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
digestive disturbances, and that tho abdominal pain,
nausea, and vomiting following ingestion of his meals
rovent him from performing useful military service,
ft was stated t h a t the condition existed prior to entering
into service, was not incident to servico, and was not
aggravated by active servico.
VETERANS' ADMINISTRATION MEDICAL RECORDS
Juno 7, 1946: VA exam gavo diagnosis of duodenal
ulcer, nonobstructive.
September 15, 1947: G I Beries showed fluoroscopic-
ally tho duodenum did not fill completely at any time.
Under pressure there appeared to be a crater on tho
posterior wall. The duodenum was tender to pressure.
X-rays showed a stellate shaped cap in all films. Tho
impression was duodenal ulcer with scarring.
September 5, 1952: VA examination showed con-
tinued symptoms of ulcer with constant dull ache and
subjected tenderness on deep palpation in the epigas-
trium. The diagnosis was: Kistory—ulcer, duodenal,
chronic, recurrent.
September 8, 1052: Barium meal examination re-
vealed a sovero deformity of the duodenal cap with
marked constriction near tho base. There was a pseudo-
diverticulum developing on the greater curvature side.
There was a small projection from the lessor curvaturo
side which was suggestive of a tiny crater.
October 6, 1959: Admitted to VA hospital, Syracuse,
N.Y., because of severe epigastric pain. Veteran gave
a history of ulcere for the past 14 years, with an episode
of black tarry stools 1 year after discharge from servico
in 1945. Upper GI scries revealed an active duodenal
ulcer with antral gastritis.
October 10,1959: Discharged from hospital with final
diagnosis of active duodenal ulcer with antral gastritis,
ana possible active gastric ulcer.
ADJUDICATION ACTIONS
Juno 6,1945: Compensation claim received for service
connection for stomach ulcer, tho veteran stating that
the condition began in 1937. Service medical records
also received.
Juno 0, 1945: Service connection by aggravation, 10
percent disabling, granted for duodenal ulcer, under
regulation 1(a), part 1, paragrnph 1(b).
July 31, 1946: Rating Board action was deferred
pending definite findings regarding veteran's ulcer
disability because X-ray findings showed only on im-
pression of duodenal ulcer not obstructive.
FINDINGS OP FACT AND CONCLUSIONS OP LAW PREPARED BT LAW
STUDENTS FROM TRE STATEMENT OF PACTS WHICH APPEARS
IN TBB FIRST COLUMN
revealed a definite deformity of the duodenal bulb,
without any evidence of an ulcer niche. Examinations
of the feces were negative for occult blood. Sonic epi-
gastric tenderness was noted. There had been no hema-
tcmesis. Ho was discharged on a certificate of disability
because of a stomach ulcer, held by the Servico Depart-
ment to have existed prior to service and not to have
been aggravated thereby.
A claim for compensation was submitted at the time
of separation and reference was made to ulcers in 1937
with medical treatment from 1942 to 1945. Postservico
examination and hospital reports are of record and in
September 1947, tho veteran reported he had an ulcer
prior to service.
A prescription issued by a doctor, in November 1960,
is of record.
Service connection, by aggravation, was granted for
duodenal ulcer, hut on later review such action was held
to be clearly and unmistakably in error and servico
connection was discontinued.
LAWS AND REGULATIONS
Service connection is warranted for a disability
incurred or aggravated in line of dutv during active
servico (38 U.S.C. sec. 310).
38 CFR 3.105 provides that service connection once
granted may not be severed except on tho basis of clear
and unmistakable error.
DISCUSSION AND EVALUATION
The data recorded for clinical purposes during and
after service and other ovidenco of record clearly and
unmistakably establish the existence of a stomach dis-
order prior to Rcrvice. The symptoms reported in
service were similar to those which existed prior to
service and were occasioned by the preexisting dis-
ability.
FINDING OF FACT FINDINGS OF FACT
1. A stomach ulcer clearly and unmistakably existed (1) No duodenal ulcer condition was noted at the
prior to service. time of tho claimant's induction examination on March
2. Thorp, clearly and unmistakably was no increase 30, 1945.
or aggravation of the preexisting disability during (2) Less than a month thereafter, on April 22, 1945,
service. ho was admitted to station hospital, Camp Gordon,
Gtt.t with complaints of dizziness and a burning and
sore feeling of the stomach. Ho gavo a history of stom-
ach trouble for about 3 ^ears prior thereto with, a
previous diagnosis of peptic ulcer. An X-ray admin-
istered on Iviay 9, 1945, showed certain changes that
STATEMENT OF PACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
October 14, 1947: Claim reviewed on basis of examin-
ation and 1945S, and evaluation of 10 percent by
aggravation was confirmed, but under VR 1(a), part
I, paragraph 1(a).
October 22, 1952: Previous rating confirmed.
February 23, 1960: Proposal to sever service con-
nection for duodenal ulcer, pusuant to VAR 1105(D).
August 9, 1960: Concurrence in the proposal to sever
service connection for duodenal ulcer Dy Director,
Compensation and Pension Service.
August 18, 1960: Notice to veteran of proposal to
sever.
November 7, 1960: .Severance of service connection
purauaut to VAR 1105(D).
November 10. I960: Veteran notified service con-
nection sovored.
December 27, 1960: Veteran appeals Veterans' Ad-
ministration decision. The isstfe involved is, service
connection for duodenal ulcer.
January 18, 1961: Statement of accredited repre-
sentative, VA Form 646, received from American
National Red Cross.
DECISION OF HEGIONAL OFFICE AFTEH KEVIEW OF APPEAL
AND EVIDENCE
February 9, 1961: Service connection for ulcer con-
dition is not warranted because the evidence of record
clearly establishes that the disability existed prior to
service, and in view of short period of active service
prior to hospitalization aggravation is not shown.
DECISION. CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
LAW, OF THE BOARD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
indicated that an ulcer had been active at one time.
(3) Claimant was discharged with a certificate of
disability on June 2, 1945, because of duodenal ulcer.
The certificate stated that the condition existed prior
to entering into service, was not incident to service, and
was not aggravated by active service.
(4) Claim was made and service connection for duo-
denal ulcer was granted on June 6, 1945, on the basis
of service aggravation.
(5) VA medical records through 1959 show numerous
diagnoses and treatments for active duodenal ulcer.
(fi) On November 7, 1960, service connection was
severed ami this was upheld on appeal to the regional
office on the basis that the record clearly established
that the disability existed prior to service, and in view
of the short period of active service prior to hospitaliza-
tion, aggravation was not shown. From this decision,
appeal is made to the. Board.
CONCLUSIONS OF LAW CONCLUSIONS OF LAW
1. Service connection for duodenal ulcer was clearly (1) The claimant is a veteran of active military serv-
and unmistakably in error. ice during a period of war and was honorably discharged
2. The restoration of service connection for duodenal within the meaning of 38, U.S.C. 101.
ulcer is not warranted. (2) Consequently, he becomes entitled, under section
310, to compensation for disability resulting from injury
DECISION suffered or disease contracted in the line of duty or for
service aggravation of a preexisting injury or disease.
The appeal is denied. (3) The existence of a duodenal ulcer was not noted
at the time of induction. However, the Board con-
eludes that the presumption of sound condition existing
under section 311 as to all defects and disorders not
noted at the time of induction, is overcome by clear
and unmistakable evidence that a duodenal ulcer con-
dition preexisted the veteran's service.
(4) The presumption of section 312 relating to a
chronic disease, under which classification section 301
places a duodenal ulcer, is unavailable to claimant inas-
much as ho does not meet the requirement of having
served for 90 days or more.
(5) On the basis of all of the evidence of record, it
does not appear that there was any increase in the
severity of Die condition after induction as compared to
the condition prior to service. In view of the less-than-
1-month period of service before hospitalization, the
Board concludes that oven if there was a worsening of
the condition subsequent to induction, the evidence
clearly and unmistakably shows, as required by section
353, that it was duo to the natural progress of the ail-
ment and not the result of aggravation caused by serv-
ice life.
STATEMENT OP FACTS PREPARED, BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
SUMMARY OF CABB FOR APPELLATE R E V I E W
1. Restoration of service connection for duodenal
ulcer.
MILITARY MEDICAL RECORD
May 27, 1D44: Induction examination negative.
December 29, 1044: Admitted to outpatient clinic of
Camp Gordon Johnston, Fla., with history and com-
plaints of duodenal ulcer. Symptoms at this time of
epigastric pain and belching. Given medication for
same.
J a n u a r y 1, 1945: Disposition date. Diagnosed as
duodenal ulcer, moderate, severe.
J a n u a r y 5, 1945: Admitted to station hospital, Camp
Gordon Johnston, Fla., with complaints of duodenal
ulcer. Soldier Btated ho bad stomach trouble in 1941
(.'J years ago). Had pain in epigastrium, relieved by
food. States he was X-rayed at Jefferson Hospital and
ulcer was found, was at home sick for 7 weeks on ulcer
diet. Has been careful of diet since then. Says that
about 5 weeks ago pain returned, has been taking Turns,
milk of magnesia. Examination of abdomen reveals
tenderness in epigastrium. No distention, no masses.
Has been X-rayed once in Army 4 months before ad-
mission and was all right; however, symptoms began 5
weeks before admission tins time and symptoms have
increased.
January 15,1945: X-ray examination of upper gastro-
intestinal tract with aid of barium meal shows the
esophagus and stomach to be normal. The duodenal
cap is deformed with a 2 mm ulcer crater on the anterior
wall of the appendix. Normal gastric mobility sup-
pression, duodenal idrer.
January 18, 1945: O D D proceedings initialed.
January 20, 1945: On diet and still improving.
Was told he must remain on diet and alUatc for 18
months. Not able to return to duty and will be pre-
sented to O D D Board.
January 20, 1945: Final diagnosis of duodenal ulcer,
chronic, cause undetermined. E P T S N L O D , improved.
FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BR LAW
STUDENTS FROM TUB STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
JDDOMENT
In accordance with the foregoing Findings of Fact
and Conclusions of Law, it is ordered, adjudged, and
decreed that tho ruling of tho regional ofl'ico upholding
tho severance of tho veteran's sorvico connection for
duodenal ulcer bo affirmed.
CASE NO. 6
VETERANS' ADMINISTRATION, This is a proceeding instituted to sever service con-
BOARD OF VETERANS' APPEALS, nection of a duodenal ulcer condition, 20 percent dis- d
March 14, 1961. abling. The issue for decision is whether tuc evidence
Appellant represented by: Catholic War Veterans of of record establishes that it was clearly and unmis- M
the United States of America. takably erroneous for tho agency, which decided tho o
veteran's claim initially, to grant service connection of
tho veteran's prcservice ulcer condition on tho basis of
>
t4
aggravation.
The appeal was timely filed, and is properly before
ft)
the Board, from the rating action by the regional office
at Philadelphia, Pa., which severed service connection
for duodenal ulcer. I t is contended that the, ulcer was
healed prior to induction and reactivated in service, PI
because of worry over inability to obtain emergency
furlough upon the death of the veteran's brother.
O
THE EVIDENCE
Tbo veteran served from July 1944 to January 1945.
No pertinent abnormality was noted at induction. Ho
was seen at the dispensary because of abdominal com- w
plaints and it was reported that X-ray prior to service
revealed an ulcer. During hospitalization in January m
1945, because of epigastric pain, it was reported for
clinical purposes that the veteran had had stomach
trouble Bince 1941 and X-ray, at t h a t time, revealed a
duodenal ulcer; he had remained in bed for 7 weeks and
had been careful of his diet since. I t was also reported
that he had some trouble 2 months after induction and
X-ray was said to have been negative; the pain recurred
5 weeks ago. Examination revealed tenderness in the
>
epigastrium. Gastrointestinal series revealed a de-
formity of the duodenal bulb and an ulcer crater.
g
Neither mclena nor hcmatcmesis was reported. No
reference was made to any emotional upset or psychic
trauma during service. He was discharged on a certifi-
cate of disability because of the duodenal ulcer.
A claim for compensation was submitted a t time of
separation. On Admin is tration examination in April
1946, the veteran complained of occasional episodes
of stomach distress, which were relieved by aniphojel.
Slight tenderness of the epigastrium was noted. Gastro-
intestinal series revealed on irregularity of the duodenal CO
STATEMENT OF FACTS PREPARED BV TBB REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
Januarv 26, 1945: Entry—Station Hospital, Camp
Gordon Johnston, Fla., shows diagnosis chronic duo-
denum ulcer—cause undetermined. Could not ob-
tain proper diet condition—Held E P T S , aggravated by
service, reason could not. obtain proper diet and under
nervous tension of Army life.
VETERANS' ADMINISTRATION MEDICAL RECORDS
January* 29, 1945: Medical statement received from
D r . Paul C. Swenson shows he examined the veteran on
November 24, 1941, and found evidence of an active
cicatricial duodenal ulcer.
September 12, 1945: Records show veteran admitted
to USNH, Philadelphia, Pa., on August 20, 1945, and
discharged on September 8, 1045. Request made for
report of treatment but records not available. Diagno-
sis of duodenal ulcer, acute, noted.
April 2, 1946: VA examination Philadelphia, Pa.,
BIIOWS veteran is on a strict ulcer diet with occasional
episodes of distress relieved by amphogel tablets.
Digestive system examination shows slight tenderness
of epigastrium. Diagnosis: pep(ic ulcer (quiescent).
April 9, 194G: Examination by designate Dr. I. J.
Wesscl shows by X-rav an ulcer crater visualized at
Beveral examinations within the duodenal bulb. Im-
pression: duodenal ulcer (active).
January 17-21, 1947: VA examination shows veteran
symptomatic duodenal bulb is irregular in contour with
stellate scarring. At 3 hours stomach is empty.
Summary: chronic duodenal ulcer which appears to be
largely healed. Findings at this time are mainly due
to scarring.
January 22, 1948: VA examination shows epigastric
pain relieved by eating. Mild tenderness on deep
manual pressure. Diagnosis: Duodenal ulcer, active by
X-ray examination,
February 2, 1948: Medical statement from Dr.
Philip J. diodes and Dr. J. Gershon-Cohen shows con-
siderable distortion of duodenal bulb end postbulbar
portion of the duodenum duo to diffuse superficial
ulceration.
April 11-23, 1949: USNH, Philadelphia, Pa., report
shows minimal deformity of duodenal bulb by fluor-
oscopy and X-ray. Veteran on dietary control. Im-
pression: deformity of duodenal bulb.
Mnrch 13-April'S, 1950: USNH, Philadelphia, Pa.,
report shows stomach emptied into a duodenal bulb,
while deformed and showed an ulcer crater. The bulb
at no time filled out to a normal size of contour. Im-
pression: Chronic, duodenal ulceration, active. Veteran
on dietary control.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
bulb and an ulcer crater. Other official postservice
examination and hospital reports are of record. The
outpatient treatment records have also been considered.
£
A report from the Jefferson Hospital refers to a
gastrointestinal examination in November 1941; fluoro-
scopic examination a t that time revealed a persistent
deformity of the duodenal cap due to a chronic cica-
tricial ulcer.
Service connection was granted for duodenal ulcer,
but on later review such action was held to be clearly
and unmistakably in error and service connection was G
discontinued.
a
THE LAW AND THE KEGULATIONR
>1
Service connection may be granted for a disability r
which is incurred or aggravated in line of dutv during
active service (38 U.S.C. 310); 38 CFR 3.105 provides »
that service connection, once granted, may not be sev-
ered except on the basis of clear and unmistakable error. <
DISCUSSION AND EVALUATION 3
The service clinical data and the report from the
Jefferson Hospital clearly and unmistakably establish o
the existence of a duodenal ulcer prior to service. There
was no melena or hematemesis during service, nor was *i
there any reference to an emotional upset or psychic <!
trauma. The symptoms noted in service were similar H
to those which existed prior to service and were due to H
the preexisting duodenal ulcer. H
W
FINDINGS OF FACT >
FINDINGS OF FACT
(1) A duodenal ulcer clearly and unmistakably ex-
isted prior to service.
Upon consideration of all the evidenco in the record, °i
I hereby make the following findings of fact:
(2) There clearly and unmistakably was no increase
in severity or aggravation of the preexisting duodenal
The veteran was inducted for military service on a
May 27, 1944. His induction examination mentions
ulcer during service. no infirmities found at that time. Sometime during >
t-l
August or September of 1944, X-rays were taken of the
veteran's stomach and his abdominal viscera was found K
on
to be normal. In the latter part of November 1944,
the veteran began having epigastric pains, and when his
condition grow worse, was admitted on December 29,
1944, to a military hospital. He stated at this time that
he had contracted an ulcer in 1941 and was placed
upon a special diet. X-rays taken in January 1945,
revealed an active duodenal ulcer, and disability dis-
charge proceedings were commenced. On January 20,
1945, the veteran was given a disability discharge. I t
ivas stated in his separation examination that the vet-
eran had a chronic duodenal ulcer, which existed prior
STATEMENT OP PACTS PREPARED DY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS* APPEALS
January 10,1952: VA, Philadelphia, Pa., examination
shows pains in upper abdomen relieved by milk. Upper
GI series shows spasm duodenal cap with deformity and
marked contraction near the appendix. Hyperperis-
tolysis is noted und in 20 minutes the barium has
reached the lower ilcium. Diagnosis: Active duodenal
ulcer.
Fcbruury 1-19, 1952: USNH, Philadelphia, Pa.,
shows duodenal deformity without obstruction with
hemorrhage. Continued on ulcer diet and medication.
February 22, 1947-Junc 19, 1958: O P T folder shows
very numerous visits and treatments for chronic
duodenal ulcer.
August 8-Septcnibcr 27, 1058: VAH, Philadelphia,
Pa., shows veteran hospitalized during these dates be-
cause of abdominal pain of 10 years' duration. Tenta-
tive diagnosis was alcoholic encephalopathy and peptic
ulcer. Upon subsequent laboratory and X-ray findings
an established clinical diagnosis of chronic brain syn-
dromo, alcohol intoxication and duodenal ulcer disease,
chronic, inactive was made.
ADJUDICATION ACTIONS
January 29, 1945: Claim filed for condensation
(stomach trouble).
January 30, 1045: Service connection established for
duodenal ulcer, 30 percent.
June 14, 1946: Reviewed on VA examination and
rating action of January 29, 1945, confirmed.
February 6, 1947: Reviewed on VA examination and
evaluation rodueed to 20 percent based on 1945 service.
April 6, 1948: Reviewed on VA examination and
rating of February 6, 1947, confirmed.
June 17, 1949: Rating reviewed on hospital report of
April 11-23, 1949, and rating action of February G,
1947, confirmed.
M a y I, 1950: Rating reviewed on basis of hospital
report of March 13 to April 8, 1950, and rating of
February 0, 1947, confirmed.
February 14, 1952: Rating based on VA examination
of January 10, 1952, and rating action of February 0,
1947, confirmed.
March 31, 1952: Rating based on hospital report,
USNH, February 1-19, 1952, and rating of February
0, 1947, confirmed.
October 8, 1953: Claim filed for stomach condition.
November 3, 1953: Service connection for stomach
condition denied.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
to service. The final diagnosis concluded that tho
veteran's ulcer condition, although the cause was un-
determined, had been aggravated by active military
service because the veteran could not obtain tho proper
diet and because the veteran was under nervous tension
of Army life. The veteran was at no time engaged in
combat with tho enemy.
After his discharge tho veteran filed a claim with the
Veterans' Administration for service connection of his
ulcer condition on' grounds that tho condition hud been
aggravated while lie was on activo military duty.
The servico connection claim on the basis of aggravation
was granted in January 1945, as 30 percent disabling.
When the veteran was examined in January 1947, tho
duodenal ulcer' appeared to bo largely healed, and
accordingly, tho rating board reduced tho veteran's
disability rating from 30 to 20 percent. In February
1952, tho ulcer became active again, and tho veteran
was placed upon a special diet. A claim for additional
service connection was denied in November 1953.
Tho veteran's most recent Veterans' Administration
examination was made while ho was hospitalized from
August 8 to September 27, 1958. Tho clinical diagnosis
at this time was that the veteran was suffering from tho
ulcer condition and alcoholic intoxication. A claim for
a non-servico-connected pension was denied in October
1958.
Tho regional office on April 17, 1959, commenced
proceedings to sever servico connection of the veteran's
ulcer condition. The proposal to sever was submitted
to the central office, which concurred in tho proposal
to sever after the regional office confirmed a rating of
April 1, 1959, based upon a review of tho veteran's
medical records from August 8 to September 27, 1958.
There is no ovidenco in tho record concerning what
information was contained in the rating of April 1,
1959. On September 29, 1960, tho regional office
severed service connection of tho veteran's ulcer condi-
tion because thero was no evidence demonstrating
aggravation during military service- of tho veteran's
ulcer condition.
The veteran has appealed the decision of tho regional
office.
OPINION
Although the regional office did not state tho regula-
tion under which the veteran's claim was severed, 1
hold that tho applicable regulation is VAR 1105(D),
STATEMENT O P FACTS P R E P A R E D BY T H E REGIONAL OFFICE AND
TRANSMITTED TO T H E BOARD O F V E T E R A N S ' A P P E A L S
October 3, 1958: Application filed for non-scrvico-
conncctcd pension.
Octobor 28, 1958: Claim for non-servico-connected
pension denied.
April 17, 1959: Proposal to sever service connection
for duodenal ulcer submitted to central office.
Fobruary 17, 1960: Case remanded by central office.
May 19, 19G0: Records reviewed; treatment of folder
USNH, August 8,1958, to September 27,1958, reviewed
and rating of April 1, 1959 confirmed. Case returned
to central offico.
June 21, 1960: Central Office concerned in proposal
to sever service connection for duodenal ulcer.
September 29, 1960: Final severance of service con-
nection for duodenal ulcer.
November 26, 1960: Appeal filed. One issue in-
volved: (1) Service connection for duodenal ulcer.
DECISION OF HEG10NAL OFFICE AFTEH REVIEW OF
A P P E A L AND E V I D E N C E
Evidence in service fails to demonstrate any disease
of pathological development, to precipitate aggravation
of the prcscrvice existing duodenal ulcer. The symp
toms presented was a recurrence of the duodenal ulcer
symptoms, which existed prior to service.
FINDINGS O F FACT AND CONCLUSIONS O F LAW P R E P A R E D BY LAW
S T U D E N T S FROM T H E STATEMENT O P FACTS W H I C H A P P E A R S
I N T H E F I R S T COLUMN
quoted in the margin. 1 The regional office apparently
applied this regulation since the approval of the central
office was obtained before the regional office severed
service connection. Since there is no evidence that the
regional office obtained from the proper authorities a
certification of a change in diagnosis of the veteran's
health, severance of service connection must be war-
ranted upon the facts of record, as found above, in
order to sustain the decision of the regional office.
The primary issue for decision, therefore, is whether,
as grounds for severance, the Government lias sus-
tained its burden in proving that the evidence estab-
lishes that it was clearly and unmistakably erroneous
to grant service connection of the veteran's prcscrvice
duodenal ulcer on the basis of aggravation. 1
It should be mentioned that the veteran stated, when
filing his initial claim for service connection in January
1945 that, his ulcer condition began in 1941, and there is
substantial medical evidence to rebut the presumption
of sound condition upon induction, provided for in 38
U.S.C. 311. I turn now to the issue for decision.
The regional office, aa I interpret its decision, con-
cluded that the evidence in service fails to show aggra-
vation of the ulcer condition and held that the veteran's
disability while on active duty was a recurrence of the
duodenal ulcer symptoms, which existed prior to service.
From the evidenco it appears that the rating board in
the regional offico relied upon its rating of April 1, 1959,
with respect to the veteran's ulcer condition, in deter-
mining that sevcranco was warranted. There is, how-
ever, no evidence in the record concerning the contents
or the findings in the April 1 rating. Since the regional
office decided the case only upon the evidence in the
record, the appeal must likewise bo determined.
In defining aggravation, 38 U.S.C. 353 provides—
A preexisting injury or disease will be considered to have been
a g g r a v a t e d b y a c t i v e m i l i t a r y * * * s e r v i c e , w h e r e t h e r e 1B a n
i n c r e a s e in d i s a b i l i t y d u r i n g s u c h s e r v i c e , u n l e s s t h e r e is a
specific f i n d i n g t h a t t h e i n c r e a s e in d i s a b i l i t y is d u e t o t h e n a t u r a l
p r o g r e s s of t h e d i s e a s e .
' VAR 1105(D). Saerante of itrtfce cmnecttm.—Service connection will be severed
only where evidence establishes that It Is clearly and unmistakably erroneous (too
burden of proof being upon the Government)- A change In diagnosis may be ac-
cepted as a basis For severance action If the examining physician * * * certifies that,
In the light of all accumulated evidence, the diagnosis on which service connection
was predicated is clearly erroneous. * * * When severance of service connection Is
considered warranted, a rating proposing severance will be prepared setUng forth ail
material facts and reasons and submitted to the central offico for review without
notice to claimant or representative. * • •
• 38 U.S.C. 310. ihuk enlitlemmt.~FoT disability resulting from personal Injury
suffered or disease contracted In lino of duty, or for aggravation of a preexisting Injury
suffered or disease contracted In lino of d u t y . In the active military, naval, or air
service, during a pcriodof war. the United States will pay to any votenui thus disabled
and who was discharged or released under conditions olhoi than dishonorable from the
period of service in which said Injury or disease was Incurred, or prceilsUng Injury
or disease was aggravated, compensation as provtdod in this subchapter, but no
compensation shall be paid If the disability Is the result of tbo veteran's own willful
misconduct.
FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED DT LAW
S T U D E N T S FROM T H E S T A T E M E N T OP PACTS WHICH APPEARS
IN T H E FIRST COLUMN

The evidence clearly establishes that the veteran's

preservico ulcer condition was healed at the time of his
induction and that there was an increa&o in the veteran's
disability during active military service The induction
examination of the veteran made no mention of an ulcer
condition. Moro important, howovcr, is the fact that
X-rays taken in August, 4 months prior to the veteran's
admission to a hospital with stomach trouble, showed
that the veteran's condition was normal. The first
symptoms of ulcer trouble did not occur until after
approximately 6 months of active service, from May 27,
1944, to the fatter part of November 1944. When the
o£j
pain from the ulcer became serious, tho voteran reported i—i
to a military hospital and was admitted on December ^
29, 1944; X-rays taken shortly thereafter revealed an ^
active duodenal ulcer. 1 hold that tho fact that the
veteran did not report to tho hospital when tho first «*
symptoms of his ulcer condition recurred does not con- ^
stitute willful misconduct, which would bar the vet- ^
eran's claim. 1 frj
As to tho causo of tho increase in tho votpran'B ^J
disability during military scrvico, tho report in tho "^
veteran's separation examination Btatca that tho -.
veteran's ulcer condition was aggravated by military 2
service because he could not obtain a proper diet and
becauso ho was suffering from nervous tension of Army ^
lifo. £
On the basts of this evidence I am of tho opinion that ^
the agency, which first considered tho veteran's claim, fq
was not clearly and unmistakably erroneous in finding jrj
that the veteran's ulcer was aggravated by military ;>
service. Where there has been an inGrcaso in disability fy
during military service, as, tho ovidenco clearly cstab- £p
lishes, 38 U.S.C. 353, quoted above, provides t h a t there
is aggravation of tho preservice disease, unless a specific _
finding is made that the increase wa duo to tho natural L^
progress of tho disease. Tho Government, which has ^
tho Diirden of proof in this case, has adduced no evidenco Hj
upon which to mako such a finding; on tho contrary, the g
medical evidence in tho veteran's separation examina- C/3
tion establishes that tho ulcer condition was aggravated
in active military scrvico becauso of tho veteran's
nervous tension and lack of proper diet. Tho regional
office in its decision fuils to consider this ovidenco.
Although there is some evidenco that tho veteran's
consumption of alcohol might bo affecting his ulcer
disease, thero is in tho ovidenco no certification by |—L
proper authorities that the veteran's BtoSnoeh trouble «KJ
IS now being caused by other factors; VAR 1105(D) ^
' S«e now a, nipro. ^ ^
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS" APPEALS
STATEMENT OF C A S E FOR APPELLATE R E V I E W
Restoring service connection for psychoneurosis,
mixed type, and residuals of fracture, neck of femur,
bilateral.
MILITARY MEDICAL RECORD
September 8, 1942: Induction examination showed
hallux valgus, bilateral, moderate, nonsymptomatic.
May 5, 1943: Admitted to hospital with chief com-
plaint of no bowel movement of any consequence in
one week. As a result he felt sleepy and sluggish at
times, felt dizzy. Diagnosis, constipation, cause not
determined. Returned to active duty May 12, 1943.
October 7, 1943: Admitted to hospital for medical
observation—disease, because of undesirable behavior.
Final diagnosis: Psychoneurosis, psvehasthenia, moder-
ate. EPTJ3. T O duty November 9, 1943.
December 7, 1943: Admitted to hospital with chief
complaints, his mind was cloudy, could not think
DECISION, CONTAINING FINDINGS OF PACT AND CONCLUSIONS OF
LAW, OF THE BOARD OF VETERANS* APPEALS
CONCLUSION'S OF L A W
(1) Service connection for duodenal ulcer was clearly
and unmistakably in error.
(2) Restoration of service connection for duodenal
ulcer is not warranted.
The appeal is denied.
CASE N O . 7
VETERANS' ADMINISTRATION,
BOARD OP V E T E R A N S ' APPEALS,
APrUS7, 1961.
Appellant represented by: AMVETS— American
Veterans of World War I I .
THE ISSUE
The appeal was timely filed, and is properly before
the Board, from the rating action of the regional office
at LatUe Rock, Ark., which severed service connection
for a neuropsychiatry disorder and fracture of the neck
of each femur. I t is contended that severance of service
connection was not in accordance with the law.
THE EVIDENCE
(The veteran) served from September 1942 to March
1944. No pertinent abnormality was noted.at induc-
tion. He was hospitalized for constipation in M a y
1943 and it was reported that when constipated he felt
FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS PROM THE STATEMENT OP PACTS WHICH APPEARS
IN T H E FIRST COLUMN
requires such a certification for severance upon grounds
of change in diagnosis of the veteran's health. 4 00
CONCLUSIONS OP L A W
In view of the foregoing and of the evidence of record,
I make the following conclusions of law:
(1) T h a t the applicable Veterans' Administration
Regulation to determine whether service connection
should be severed in this case is VAR 1105(D).
(2) T h a t the veteran's ulcer condition existed prior
to induction, and that the veteran was discharged under
conditions other than dishonorable.
(3) That, the vcLerun was a t no time guilty of willful
misconduct which would bar his service connection >
claim.
(4) T h a t there was an increase in disability during r*
the veteran's active military service, and that the in-
crease in disability was caused by aggravation in mili- w
tary service. M
(5) T h a t the burden of proof was upon the Govern- W
ment and that the ovidenco adduced by the Government
does not establish that service connection of the vet-
eran's preservicc ulcer condition is clearly and unmis-
takably erroneous. o
(6) T h a t servico connection of the duodenal ulcer
should not bo severed.
<
This is a proceeding instituted pursuant to VAR
1105(D) to sever service connection of a psychoneurotic H
condition, SO percent disabling, and of bono fractures.
The issue for decision is whether, as grounds for sever-
ance, the evidence establishes that service connection
for the veteran's preservico psychoneurosis and post-
service bone fractures was clearly and unmistakably CO
erroneous.
o
F
>
STATEMENT OP FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO TUB BOARD OP VETERANS' APPEALS
clearly, did not have control of his body or mind.
Diagnosis: Psychoneurosis, psychaathenia, moderate,
E P T E . To d u t y December 28, 1943.
December 29, 1943: Readmitted to hospital which
showed he was discharged the day before and given a
3-day pass. Ho had been loafing around a filling sta-
tion acting strangely, and would wander into the street
and was transferred to general hospital February 1
1944. Diagnosis: Psjxhaathenia, severe.
February 1, 1944: Admitted to Ream General
Hospital as a transfer. Examination revealed no
organic discaso found. Diagnosis: Psychoneurosis,
anxiety state. E P T E , for which condition he was
given a C D D .
VETERANS' ADMINISTRATION MEDICAL RECORDS
Juno 13, 1945: VA examination recorded lor clinical
and diagnostic purposes: At age 8 or 9 a change in his
personality was noticed. Later considered queer and
peculiar. Had temper tantrums. \ r oluntarily entered
a mental hospital in Texas in 1939. Here became re-
sentful, Bullen, and felt he was frustrated by the physi-
cians. Discharged after 6 montlis, improved, b u t
within 1 year he hud slipped back to his former level.
Conditions were manifested by subjective and objectivo
symptomatology such as to cause a definite social and
industrial incapacity. Diagnosis: Psychoneurosis,mixed
typo in a schizoid personality.
August 27, 1946: Admitted to VA hospital for treat-
ment of hemorrhoids. Discharged November 14, 1946.
Diagnosis: Hemorrhoids and hernia, inguinal, bilateral.
March 24, 1947: Admitted to VA hospital. Chief
complaints of pain and swelling, left foot. Discharged
March 21, 1947. Diagnosis: Infected bunion, left
foot; inguinal hernia, bilateral.
April 7, 1947: VA examination showed psychoneuro-
sis, mixed.
May 30, 1947: Admitted to VA hospital with chief
complaint of depletion of nerves. Discharged against
medical udvico June 11, 1947. Diagnosis: Psycho-
nourosis, mixed type.
July 10, 1947: Admitted to VA hospital because of—
he adjusted poorly. Discharged M H B September 21,
1947. Diagnosis: Psychoneurosis, neurasthenic typo.
September 14, 1947: Admitted to VA hospital, Coral
Gables, Fla., which showed psychoneurosis, neuras-
thenic type, with schizoid personality which would re-
quire prolonged hospitalization in a nervous or mental
hospital. Discharged September 30,1947, as a transfer
to VA Hospital, Augusta, Ga.
DECISION. CONTAINING FINDINGS OP FACT AND CONCLUSIONS OF
LAW, OP THE BOARD OF VETERANS' APPEALS
dizzy and had headaches. In October 1943, he was
admitted for observation because of his complaint of
having felt weak and rundown for the past week. E c -
centric behavior, suggestive of compulsion, was noted
during hospitalization and abnormal behavior had been
reported while in the barracks prior to admission. He
was granted a furlough and on return the same be-
havior was reported. Psychoneurosis was diagnosed
and he was discharged from the hospital to await dis-
charge on certificate of disability. On admission to the
hospital in December 1943, he complained of his mind
becoming cloudy and of inability to think straight. He
had many somatic complaints. Ho was discharged and
readmitted the following day because of abnormal be-
havior while on pass. Ho again had numerous somatic
complaints. I t was reported for clinical purposes that
he had been nervous since age 10, had difficulty in get-
ting along with people, and nad been in a mental hos-
pital in 1939. Other information revealed that the
veteran had always been a problem, thatprior to service
his symptoms usually culminated in a visit to a doctor
and that tho present episode was similar to his pre-
service mi .ner of handling situations. On examina-
tion he was described as being quiet, friendly, cooper-
ative, and oriented with good memory and superior
intelligence. He showed some evidence of vacillation.
No findings relative to a psychosis were reported. Ho
was discharged on certificate of disability for psychas-
thenia, held by the Service Department to have existed
prior to servico and not to have been aggravated
thereby.
A claim for compensation was submitted at time of
separation from service. When examined in June 1945,
(the veteran) was described as being neat, spontaneous,
cooperative, coherent, relevant, nervous, and tense.
H e denied delusions and hallucinations. He reported
ho had been shy and bashful as a child. Other post-
service hospital and examination reports arc of record
and schizophrenic reaction was diagnosed in October
1947. During hospitalization from April 1948 to
August 1950, lie was given electroshock therapy and
sustained a fracture of the neck of each femur. A
social service report in January 1948 revealed that the
veteran had always been nervous.
The veteran was hospitalized at the Galveston State
Psychopathic Hospital from February to June 1940.
I t was reported t h a t things had seemed unreal to the
veteran since age 15 and for tho past 3 months he had
been bothered with compulsive actions and obsessive
thoughts. On examination he was restless, tense,
fidgety, manneristic, untidy, coherent, relevant, and
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICB AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
October 1, 1947: Admitted to VA Hospital, Augusta,
Ga., which showed discharged against medical advice
on October 8, 1947. Diagnosis: Observation, mental
illness. Psychoneurosis.
October 17, 1947: Admitted VA hospital. Showed
diagnosis: Schizophrenic reaction. Discharged AMA
January 5, 1948.
January 21, 1948: Admitted VAH this date, dis-
charged AMA same date. Diagnosis: Schizophrenic
reaction, chronic.
March 4, 1948: Admitted VA Hospital, Coral Gables,
Fla. Diagnosis: Schizophrenic reaction, paranoid type,
incompetent. Transferred to VAH, Murfreesboro,
Tenn., April 20, 1948.
April 21, 1948; Admitted to VAH, Murfreesboro,
Tenn., August 6, 1948, showed X-ray made July 23,
1948, revealed a definite recent complete fracture in-
volving the neck of each femur. Discharged August
29, 1950 by reason of transfer to VA Hospital, North
Little Rock, Ark. Diagnosis: Tuberculosis, pulmonary,
mod. sev. active; schizophrenic reaction.
August 30, 1950: Admitted to VA Hospital, North
Little Rock, Ark., as a transfer. Granted a leave of
absence December 6, 1954, converted to trial visit
December 21, 1954. Discharged M H B March 6, 1955.
Diagnosis: Schizophrenic reaction, undifferentiated
typo.
December 13, 1955: VA examination showed psycho-
neurosis, mixed type, on the basis of a schizoid per-
sonality.
July 12, 1957: VA examination shows psychoneurosis,
mixed type.
ADJUDICATION ACTIONS
April 4, 1944: Compensation claim received for
alleged hernia and low thyroid.
Juno 28, 1944: Veteran granted service connection
for psychoneurosis and assigned an evaluation of 10
percent. Hernia and low thyroid disposed of as not
shown by the evidence- of record.
May 25, 1945: Veteran filed an appeal for increased
evaluation.
June 27, 1945: Rating confirmed and continued by
the rating of June 28, 1944.
December 6, 1945: The appeal for an increaso was
denied by the Board of Veterans' Appeals.
January 16, 1947: Rating confirmed the prior evalu-
ation.
May 20, 1947: Rating of January 16, 1947, was con-
firmed and continued.
Juno 13, 1947: Continued tho 10-pcrcent evaluation,
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, OP THE BOARD OF VETERANS' APPEALS
evasive. Insight was superficial. Diagnoses were
psychoneurosis and schizophrenic reaction.
The statements of A. R. Sparks, M.D., Ellery C.
Gay, Jr., M.D., Mrs. Pearl Bell, Mrs. C. P. Embrey,
Mrs. Anna Freeman and the veteran's brother, referred
to symptoms subsequent to service.
Service connection was granted for a neuropsychiatric
disorder, diagnosed as schizophrenic reaction and
psychoneurosis, and for fracture of the neck of each
femur as the proximate result of the neuropsychiatric
disorder. On subsequent review, service connection
was held to bo clearly and unmistakably in error and
was discontinued.
THE LAW AND REGULATIONS
Service connection is warranted for disability in-
curred or aggravated in lino of duty during active
service (38 U.S.C. 310).
38 C F R 3.310 provides that a disability which is
proximately duo to or the result of a service-connected
disability will also be service connected.
38 C F R 3.105 provides that service connection,
once granted, may not be severed except on the basis
of clear and unmistakable error.
DISCUSSION AND EVALUATION
The data recorded for clinical purposes, during and
after service, and the report from the Galveston State
Psychopathic Hospital clearly and unmistakably estab-
lish a neuropsychiatric disorder prior to service. The
veteran required hospitalization prior to service and
tho symptoms noted in service were similar to those
which existed prior to service and were occasioned by
the preexisting disability. As to the fractures of both
femurs, service connection was granted therefor as
having been proximately due to the neuropsychiatric
disability. If service connection for the latter disability
may be restored, it is clear that the service connection
for the secondary fractures may also be reinstated. If
service connection for tho neuropsychiatric disorder may
not bo restored, there is for consideration the question
of whether restoration of tho secondary disability is
thereby barred. In this regard, it is pertinent to
examine several opinions and decisions promulgated in
tho Veterans' Administration.
In Administrator's decision No. 803 (a precedent
decision approved January 4, 1949), we have the case
of a veteran who was granted service connection for a
neuropsychiatric disorder and who was authorized
vocational training on the basis of this grant. During
STATEMENT OP FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
July 9, 1947: Confirmed and continued the rating of
Juno 13, 1947.
November 28, 1947: Confirmed and continued rating
of June 13, 1947.
Docember 8, 1948: Rating shows service-connection
diagnosis a s : Schizophrenic reaction, paranoid type.
Previous diagnosis: Psychoneurosis, mixed type. Serv-
ice connection was also granted for residuals fracture,
neck of femur, bilateral, as directly duo to and proxi-
mately the result of service-connected disability coded
9003.
March 28, 1955: Shows review DA letter December
14, 1954.
March 30, 1955: Rating held veteran to be competent.
January 24, 1950: Confirmed and continued rating
of March 30, 1955.
August 30, 1957: Service-connected diagnosis changed
to psychoneurosis, mixed typo, formerly diagnosed
schizophrenic reaction, and assigned an evaluation of
80 percent.
December 30, 1957: Confirmed and continued rating
of August 30, 1957.
April 3, 1958: Rating denied service connection for
pulmonary tuberculosis, far advanced, with left pneu-
monectomy, inactive.
December 12, 1958: A letter from the Social Service
Department, Austin, Tex., and hospital report from the
Galveston State Psychopathic Hospital reveals veteran
was admitted to that institution on February 7, 1940,
and discharged June 12, 1940. Diagnosis: Psycho-
neurosis, psychosthenia or compulsive state; schizo-
phrenia, hebephrenic.
January 16,1959: The majority members of the rating
board proposed to sever service connection for psycho-
neurosis, mixed type, as involving a clear and unmis-
takable error on completion of action under VAR
1105(D). I t also proposed to continue service connec-
tion for residuals of fracture, neck of femur, bilateral,
on basis of Administrator's decision, Veterans' Admin-
istration No. 20.
October 20j 1959: Shows the case had been adminis-
tratively reviewed and they concurred that service
connection for psychoneurosis was clearly and unmis-
takably erroneous. The report further shows there is
no basis for maintaining service connection for the
secondary condition, namely, residual of fracture, neck
of femur, bilateral. The criteria for entitlement under
section 31, Public Law 141-73C, as amended, now
restated in title 38, United States Code, section 351,
are not met. Therefore the veteran is barred from
receiving benefits under the law cited.
January 11, 1960: Rating following administrative
DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP
LAW, OP THE BOARD OF VETERANS' APPEALS
training he received an injury. Subsequently the
service connection was severed. The Administrator
held that in the absence of willful misconduct, the
veteran, under section 2, Public Law 16, 78th Congress,
had entitlement to benefits on the basis of the additional
disability resulting from the injury. The provisions of
section 2, Public Law 16, were held to be applicable
notwithstanding the severance action taken after the
original grant of service connection and after the
authorization of training.
In an opinion dated June 7, 1948 (serial No. 391-48),
the chief legal officer of the Veterans' Administration
(then designated as Solicitor), held that the allowance
of an application for an automobile under Public Law
663, 79th Congress, should not bo disturbed notwith-
standing t h a t the allowance was made on the basis of a
disability rating which was subsequently held to have
been erroneous. Under a similar set of circumstances,
the Solicitor, in an opinion dated May 26, 1953 (Op.
Sol. No. 97-53), held that tho Veterans'Administration
may properly make reimbursement, for unauthorized
medical services furnished a veteran prior to Adminis-
tration rating action severing service connection for the
disability on which the reimbursement claim was
predicated. In this opinion the Solicitor cited a prior
opinion (Op. Sol. 239-50) in which emphasis was placed
on the fact that the secondary benefit was granted at a
time when service connection was still in effect. Tho
Solicitor signified concurrence in tho policy that a
severance of Bervico connection is prospective in its
operation and not retrospective in its effects. This
policy is reflected in Veterans' Administration Regula-
tion 1500(R) (found in 38 C.F.R. 3.500) which provides
in part that where there is severance of service connec-
tion based on clear and unmistakablo error the effective
termination date of disability benefits will be tho last
dav of the month in which discontinuance was approved.
Wo can also draw some analog}* from a body of cases,
in which additional disability resulted from treatment
in service for a disease of misconduct origin or from
injury in service attributable to a disease which pre-
existed service. Although service connection is pre-
cluded with respect to tho original disease, service
connection may be authorized for tho resultant addi-
tional disability.
The conclusion in another precedent decision (Ad-
ministrator's decision 500) and cases cited therein,
reflects the view that severance of service connection,
after a veteran's death, by reason of clear and unmis-
takablo error, should not havo an adverse retroactive
effect on tho rights of his widow claiming death pension.
The nub of the decision was that the matter of entitle-
STATEMENT OP FACTS PEEP ABED BT THB BEGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
review by central office, T W X September 2, 1955,
severed service connection for psychoneurosis, mixed
type; residualB of fracture; neck of femur, bilateral.
July 5, 1960: Rating granted veteran a nonservice
pension.
October.10, 1960: Veteran appeals Veterans' Admin-
istration decision. One issue is involved: (1) Restoring
service connection for psychoneurosis with residuals,
fracture, neck of femur, bilateral.
February 2,1961: Additional service records received.
DECISION OF REGIONAL OFFICE AFTER REVIEW OF APPEAL
AND EVIDENCE
1. T h e records clearly show that the veterans'
nervous condition preceded service. During service
there was no combat, trauma, superimposed disease,
or other incident to show aggravation. Therefore,
there ia no basis for restoring servico connection.
DECISION, CONTAINING FINDINGS OF PACT AND CONCLUSIONS OF FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
LAW, OF THE BOARD OF VETERANS' APPEALS STUDENTS FBOM THB STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
ment should be fixed in accordance with the status of the
veteran's disability rating as of the time of hia death
and that disallowance of death benefits should not bo
ts3
made through retroactive discontinuance of compen-
sable ratings based on technical inaccuracies or errors of
judgment. This view was made the subject of official
regulation (Veterans Administration Regulation 2682
(old)). Under this regulation only in the case
fraud or the absence of legal basis, could the sevorance
vitiate the widow's rights. A t this point it should be
observed that the veteran in the instant case had basic
eligibility, and that the case must be differentiated
a
from those in which the claimant was without "color of
law."
Wo realize that the facts which gave rise to tho above-
mentioned decisions and opinions are not on "all fours"
with the facts existing in the case before us. However,
there is a similarity which is persuasive and justifies
resort to analogy. I t cannot be denied that the cited
opinions and decisions serve as strong support for the
view that a secondary benefit flowing from favorable
rating of the primary disability, should not be canceled
or otherwise disturbed by reason of subsequent action
retroactively revoking that rating.
There is another aspect of the case which deserves
comment. A t the time (the veteran) incurred the frac-
o
ture of both femurs, applicable law, section 31, Public *1
Law 141, 73d Congress (most recently recnacted in
sec. 351, title 38, United States Code) authorized a H
1-3
claim for benefits based on injury received under certain W
circumstances during hospitalization or treatment by 50
the Veteraus' Administration. A 2-year limitation for
filing claim was specified. I t is not within tho province
>
of this Board, under the current appeal, to state whether 03
the veteran, had ho filed claim, would have established
entitlement to additional benefits under section 31.
However, it is not illogical to hold that because 6! the o
original grant of service connection for the fractures as a
proximate result of the neuropsychiatric disability, the >
veteran was precluded from tinioly asserting entitlement
under section 31. This is a consideration which may
not be lightly disregarded.
Under the entire circumstances prevailing in this
case, we are unwilling to hold that there is no tenable
theory on which to maintain the service connection
previously granted for fractures of the femurs.
FINDINGS OF FACT FINDINGS OF FACT
(1) A neuropsychiatric disorder clearly and unmis- After consideration of all the evidence of record, I
takably existed prior to servico. make the following findings of fact:
(2) There clearly and unmistakably was no increase The veteran had a long history of mental illness prior
STATEMENT OF FACTS PBEPABBD BT THE REGIONAL OFFICE AND DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS LAW, OF THE BOABD OF VETERANS' APPEALS
or aggravation of the neuropsychiatry disorder during
service.
(3) The femur fractures were clearly and unmistak-
ably not demonstrated during service.
(4) The injury to the veteran's femurs resulted from
treatment accorded him at a time when service con-
nection for the treated disability was in full force and
effect.
(5) The veteran was basically eligible to the benefits
in issue, and it is not BIIOWII that the grant of service
connection was procured through fraud.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PBEPABBD BT LAW
STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
to his enlistment. When he was a child of age 8 or 9,
ho had personality difficulties and was subject to temper
tantrums. In 1939 ho entered a State mental institu-
tion, where his condition was diagnosed as psycho-
neurosis and psychasthenia, with schizophrenic tenden-
cies. He was released from this institution in J u n e
1940; at this time, as ho later stated to Veterans'
Administration physicians, he felt t h a t his condition
was improved, but that within a year ho had regressed
to his former condition.
On Soptember8, 1942, the veteran enlisted in military a
service. There was no mention in his induction exami-
nation of his previous mental condition or that he was
suffering at that timo from symptoms of psychoneurosis.
After completing over a year of military servico, the >
veteran in October 1943, was admitted to a hospital f
because his behavior was undesirable. Although the
veteran was roturncd to duty, he was again admitted H
to a hospital with complaints that he could not think
clearl;- «nd that his mind was cloudy. Hospital exami-
nations «>n both occasions rovoaled that ho was suffering
from modorato psychoneurosis and psychasthenia, which
5
had existed prior to servico. On another occasion in
December 1943, the veteran was found wandering in
a street and acting strangely; his condition was diag- o
nosed as a severe caso of psychasthenia. The veteran
was then discharged from servico on February 1, 1944.
His separation examination confirmed the diagnoses in
previous examinations and further stated that the vet- s
eran's mental condition oxistcd prior to his enlistment. H
There is no evidence that the veteran was over engaged H
W
in combat with the enemy.
After his discharge, the voteran applied for servico
>
connection of his mental illness. His claim was granted w
in Juno 1944, and he was assigned an evaluation of 10
percent disability. A Veterans' Administration exami- a1
nation in June 1945, diagnosed the veteran's condition tr
as psychoneurosis, mixed typo in a schizoid personality.
>
In September 1947, it was determined that the vet-
eran required prolonged hospitalization, and the veteran 02
remained in various Veterans' Administration hospitals
until his release in March 1955. While ho WOB at a
hospital in Tennessee, in July 1947, tho nock of each
femur was fractured. Tho evidence docs not show how
these fractures occurred. However, servico connection
of this now disability was granted on the basis that tho
fractures were directly due to and proximately the result
of the service-connected psychoneurosis. Also, during
this period of prolonged hospitalization, the voteran
contracted pulmonary tuberculosis, but Borvico con-
nection of this disease was denied. When the veteran
S3
FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN

was finally discharged from the last hospital to which

he was admitted, nis condition was diagnosed as a
schizophrenic reaction.
The most recent medical examination in July 1957,
diagnosed the veteran's condition as psychoneurosis,
and on this basis, the veteran's evaluation was increased
to 80 percent.
On January 16, 1959, the regional office proposed to
sever service connection of the veteran's psychoneurosis
under authority of VAR 1105(D). I t was also deter-
mined that there is no basis for further service connec-
tion of the fractured bones since the psychoneurotic
condition was to be severed from servico connection
and since the veteran's injury did not meet the require-
ments of 38 U.S.C. 351, providing benefits for veterans
who are disabled as a result of hospitalization. After
obtaining approval of the central office, the regional
office severed service connection of tho veteran's dis-
abilities on January 11, 1960.
The veteran brought this appeal from that decision
on October 10, 1960.

OPINION

The applicable regulation to determine whether serv-

ice connection of tho veteran's disability should bo
severed is VAR 1105(D), quoted in the margin. 1 Since
there is in the evidence no certification by proper med-
ical authorities of a change in diagnosis of the veteran's
mental condition as grounds for severance, severance
must be found to be warranted upon the facts of record,
in order to sustain the decision of the regional office.
The burden of proof in showing that severance is war-
ranted is upon the Government. The issue for decision,
therefore, is whether, as grounds for severance, the evi-
dence of record establishes that service connection of
(1) tho psychoneurosis, and (2) the fractures in the
veteran's legs is clearly and unmistakably erroneous.
(1) Service connection of psychoneurosis: Medical
evidence clearly establishes that the veteran's psycho-
neurosis existed prior to his enlistment, and therefore,
the presumption of sound condition, provided for in
title 38, Unitod States Code, section 311, is rebutted.
The basis upon which the veteran's initial service
connection claim was that the veteran's preservico
i VAR 1105(D). StKranciofterrieieonnalioT).—6ervfoe connection will be severed
only where evidence establishes that it Is clearly and unmistakably erroneous (the
burden of proof bring upon the Government). A change In diagnosis may be ac-
cepted as a basis tor severance action If the examining physician * * * certifies that,
In the light of all accumulated evidence, the diagnosis on which service connection
was predicated Is clearly erroneous * * *. When severance of service connection Is
considered warranted, a rating proposing severance will be prepared eottlng forth
all material facts and reasons and submitted to tho central office for review without
notice to claimant or representative * ' \
PINDINCS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OP FACTS WHICH APPEABS
IN THE FIRST COLUMN

mental illness was aggravated while- ho was in activo

military service. 1
In defining aggravation, 38 U.S.C. 353 provides—
A preexisting injury or discaso will bo considered to havo
been aggravated by activo military * * • service, where thoro
is an increase in disability during such service, unless there is a
specifio finding that the increase In disability is duo to tho natural
progress of the disease.
The veteran's induction examination reveals no symp-
toms of psychoneurosis which tho veteran had Buffered
prior to liis enlistment. And from September 8, 1942,
to October 6, 1943, tho veteran performed his duties O
without a recurrence of any preservico mental difficul- O
ties. Tho veteran served over a year in military service £
beforo ho required medical attention. Sinco tho J-I
veteran appeared to bo normal during this period, I
find that tncro was an increase in his mental illness jrj
during activo military service. pj
As tho regional oflico found, there is no ovidonce •<
concerning Uio causo of this increase is disability during •-*
military Bervico. Tho veteran was not ongaged in W
combat, and thoro is evidence of no other factor, such >
as nervous tension or stress caused by military service,
which might havo aggravated the vetcrun's prcscrvico O
psychoneurosis. On tho other hand, tho ovidenco does >rj
establish that tho psychoneurotic symptoms, for which
the veteran was discharged in February 1944 arc tho *t
samo symptoms which oxistcd prior to service and P3
during most of his life. In 1940, prior to his enlist- H
ment, a State mental hospital diagnosed tho veteran's t*1
condition as psychonourosis and jisychaathcnia, with j *
schizophrenic tendencies. The identical difficulties C
existed in tho military service, except there was no •%
schizophrenia noted. I t is noteworthy that tho vot- Ui
eran's mental illness was moro sovoro both prior to and
after service, when schizophrenic tendencies woro found, O
than during service. Since thoro is no evidence what- t^
soever of aggravation during military Bervico, whereas £
the veteran liad a long history of mental illness prior &
to service and throughout his life, 1 am of tho opinion ^
that tho evidenco clearly establishes that any increase
in tho veteran's mental illness during military servico
was a recurrence of tho samo symptoms for which tho
veteran was hospitalized prior to service and was caused
by the natural progress of his mental illness.
The only remaining question is whothor the initial
• S8 U.B.C. 310. Halle trtitUvunt.—Vor disability remitting from personal injury ^^
raftered or disease contracted In Una ol duty. 01 (or awramion ol a pmeitotlng Injury ^ »
Suffered or disease contracted I' linn of duty, In the aellvo military • • • service, ^sl
durtnj a period ol war. lb* United Slatra will pay to any veteran Ihui dfcatilod and -__
woo was discharged or released under conditions other than dishonorable from the W*
period of Bcrvlco JJI which said injury or disease was Incurred, or preciiailna injury or f*Tl
abea5«wMag(r«vitM,compciisaiiontuprovidcdltilhi»BubchapUr * • -. ^
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
neuropsychiatric disorder was clearly and unmis-
takably in error, within the meaning of 38 CFR
3.105, and may not bo restored.
fracture of each femur is warranted.
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW. OP THE BOARD OF VETERANS' APPEALS
CONCLUSIONS OF LAW
1. Service connection for the variously diagnosed
2. Restoration of service connection for residuals of
DECISION
The appeal is allowed to the extent indicated.
FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
grant of service connection was clearly and unmistak-
ably erroneous. All of the above evidence was before
the agency which first considered the veteran's claim,
except for the veteran's medical records after discharge.
Because the evidence shows no aggravation, but com-
pels the opposite finding, I conclude that service con-
nection of the veteran's preservice psychoneurosis was
clearly and unmistakably erroneous.
(2) Service connection of the bone fractures: Not-
withstanding the above conclusion concerning the
veteran's psychoneurosis, I am of the opinion that the
Government has not sustained its burden in proving
t h a t service connection of the bone fractures was
clearly and unmistakably erroneous. Even though
service connection of the fractures in the veteran's >
legs can no longer be sustained on the basis that those
injuries were the result of the veteran's psychoneurosis, to
there is no evidence to show t h a t service connection of
those injuries on the basis of 38 U.S.C. 3 5 1 " would be <
clearly and unmistakably erroneous. The regional
office found that the veteran had not met the criteria
of the above statute; however, the burden is upon the
Government to show that that criteria has not been
s
met. Although the evidence does not show how the o
injury occurred, there is evidence to establish that the
injury occurred while the veteran was hospitalized in
a Veterans' Administration institution in Tennessee <
for his then service-connected psychoneurosis, and that a
the veteran applied for service connection of the frac-
tures within 2 years after the injury. There is no B
evidence to show t h a t the veteran was guilty of willful w
misconduct, which might bar his claim. I conclude, >
therefore, that the Government has not sustained its
burden in proving t h a t service connection of the w
fractured bones was clearly and unmistakably erroneous.
o1
CONCLUSIONS OF LAW r
In view of the foregoing and of all the evidence of
>
record. I make the following conclusions of law:
(1) T h a t the veteran's mental illness, diagnosed as
K
sychoneurosis, existed prior to his enlistment, and that
E e was discharged under conditions other than dis-
honorable.
• 38 U.S.C. ssi. Bmeflt* /or penont dUabltd by trtatmtnt or vocational rehabilita-
tion.—Wben any veteran shall have suffered an Injury, or an aggravation of an
Injury, as theresultof hospital lint ion, modlcal or surgical treatment, or loU» pursuit
ol a course of vocationalrehabilitationunder chapter 31 of this title, awarded him
under any of the law* administered by the Veterans' Administration, or as a result of
bavins submitted to on examination under any such law, and not the result of his
own willful misconduct, and such Injury or aggravation results in additional dis-
ability to * * * such veteran disability or death compensation under this
chapter * * * shall be awarded in the same manner as trsuchdlsablllty.anravaiion,
or death were service connected; except that no bene0is shall be awarded unless
application be made therefor within a years after such Injury or aggravation was
suffered, or such death occurred.

COMMENT ON STATEMENT OF APPELLATE R E V I E W
ISSUE
1. The question at issue is service connection for
heart disease on a wartime basis. Further, it is
believed t h a t the appeal should bo amended for service
connection for myositis, arthritis of the cervical spine,
shortening of the riglit leg, defective bearing, and
inguinal hernia.
The comment on this question at issue is limited to
the amending clause as will be discussed later under
Adjudicative Action.
MILITARY MEDICAL RECORDS
January 11, 1946: B.P. 150/100.
March 21, 1949: B.P. 138/86.
June 16, 1950: B.P. 130/80.
May 13, 1959: Angina.
May 25, 1959: Arteriosclerotic heart disease.
June 21, 1959: Arteriosclerotic heart disease.
July 22, 1959: Arteriosclerotic heart disease.
July 23, 1959: Arteriosclerotic heart disease.
December 15, 1959: Retirement from service.
Arteriosclerotic heart disease.
April 20, 1957: Trapezius myositis.
October 3, 1956: Pain in the neck—2 years. X-ray
cervical spine, negative.
VETERANS* ADMINISTRATION MEDICAL RECORDS
No comment.
DECISION. CONTAINING FINDINGS OF PACT AND CONCLUSIONS OF FINDINGS O F PACT AND CONCLUSIONS O P LAW PRBPABBD DT LAW
LAW, OP THE BOAEtD OP VETERANS' APPEALS STUDENTS PROM T H E STATEMENT O F FACTS WHICH APPEARS
IN T H E FIRST COLUMN
(2) T h a t there was an increase in the veteran's
psychonourosis during military service, but tjjat such
increase was due to the natural progress of the disease
and was not due to aggravation during military service,
(3) T h a t since thero is no evidence of aggravation,
and since the evidence requires the contrary conclusion,
the agency which initially granted service connection of
the psyenoneurosis was clearly fend unmistakably
erroneous in its decision.
(4) T h a t service connection for tho fractures is
sustainable under 38 U.S.C. 351, and that the evidence
does not establish that service connection under that
Btatute is clearly and unmistakably erroneous.
(5) T h a t service connection of tho veteran's nsycho-
neurosis was properly severed by the regional office, but
that service connection of the fractures in tho veteran's
legs was improperly severed and should be reinstated.
CASE N O . 8
VETERANS' ADMINISTRATION,
BOARD OP VETERANS' APPEALS,
May 11, 1961. Service connection for arteriosclerotic heart diseaso
on a wartime basis and pcacetimo disability compensa-
Appellant represented by the American Legion. tion for myositis, arthritis of tho cervical spine, short-
ening of the right leg, defective hearing and inguinal
hernia.
In August 1960 the agency of original jurisdiction
granted peacetime service connection for arteriosclerotic
heart diseaso and denied the grant of service connection
for myositis of the right trapezius, arthritis of tho
cervical spine, shortening of the right leg, defective
hearing and for inguinal Tiernta.
When appeal was filod, in January 1961, it was
contended that service connection for heart disease
should have been accorded on a wartime basis because
hypertension was noted on the physical examination in
January 1946. The appeal has been enlarged to
include tho issue of service connection for tho other
disabilities.
THE EVIDENCE
[The veteran's] honorable active service extended
from November 1942 to January 1946 and from March
1949 to December 1959. When he was examined for
separation from service, in January 1946, a blood
pressure reading of 150/100 was recorded. When ho
reentered service, in March 1949, blood pressure was
138/86 and an examination for discharge and reenlist-
ment, in June 1950, showed blood pressure of 130/80.
A service medical record, in July 1959, contained the
statement that the veteran was well until about 8
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
ADJUDICATION ACTION
1. The following comment is made, first of all, the
amending clause to the appeal concerning the following
conditions: myositis, arthritis, condition of the right
leg, defective hearing and inguinal hernia, for the
following reasons. This veteran has some 21 years of
service and it is shown in the instant case that he was
treated in service, or at least observed for myositis of
tho trapezius, right, and he was also observed for a pain
in tho neck with negative X-rays at that time. The
dates are as follows, respectively—April 20, 1957, and
October 3, 1956. On those two conditions alone, it is
not understood how service connection could be denied
where some treatment in service was shown, or at least
observation was shown in service for those two condi-
tions, whether on a peacetime or wartime basis. Rea-
soning has been advanced by tho VA time and again
on such cases, that peacetime service does not have a
presumptive period. This may be essentially true
where men have not had servico of any great length,
but in the case we have at hand,'the veteran does have
21 years of service and surely where else could he have
incurred any one of tho disabilities above unless it was
in service, more so, in view of the fact, that he was
found to have it some 5 months later on an official VA
examination. Therefore, it is believed that it is within
the province of the Veterans' Administration to grant
service connection for this condition where such length
of service is concerned and where there could not
possibly bo any interim or intercurrent disease or
disability.
2. Further comment is made on the column of blood
pressure readings under military medical records, and
of course, on the decision of the regional office and the
adjudicative action taken. The comment is as follows:
Within the rating schedule on page 82, looseleaf edition,
1945, it is noted under paragraph 5, that there is quite
a discussioTi concerning hypertensive and cardiovas-
cular diseases. In tho instant case, the decision by the
Board indicates that wartime service connection is not
warranted in view of the fact that the blood pressure
reading of January 11, 1946, of 150/100 was the only
reading of that particular blood pressure on that date
and, therefore, was not determinative that it would be
the start or the origin of an arteriosclerotic heart disease
fmallv diagnosed in 1959. First of all may we draw
tho Board's attention to the paragraph noted above,
in the looseleaf edition of the 1945 rating schedule and
in general we note that hypertensive heart disease may
exist without causing symptoms, but if hypertension is
long continued there may occur an arteriosclerosis.
DECISION. CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, OF THE BOARD OF VETERANS' APPEALS
months before, at which time he developed the onset of
episodes of chest pains. During examination for dis-
charge, which was for disability due to arteriosclerotic
heart disease, manifested by angina pectoris, and first
diagnosed in M a y 1959, he again referred to the gradual
onset of mild substernal pain, about December 1958.
In October 1956, the veteran complained of having
had an aching pain in tho neck for 2 years. X-ray
showed no. abnormalities. He was treated with heat
and a rubdown following a diagnosis of cervical arthritis.
In April 1957, trapezius myositis was reported but no
evidence of cervical root syndrome was found. A
moderate-sized hiatus hernia was reported, in May 1957,
and again in September 1957.
During final hospitalization in service it was recorded
that the veteran complained of pain in his lower back
and hip and left leg and of defective hearing. Examina-
tion, in September 1959, disclosed hearing acuity of
right, 15/15, and left, 8/15, by whispered voice test, and
15/15, bilaterally, on spoken voice. Audiometric ex-
amination showed an average loss of 10 right, and 25
left. This final examination also revealed a diaphrag-
matic hernia. No musculoskeletal defects were noted.
Official examination was conducted in M a y 1960.
In addition to complaints referable to the heart, the
veteran complained of pain and aching in his hip.
Arteriosclerotic heart disease was not found, clinically,
and was diagnosed by history. A special orthopedic
examination disclosed pertinent findings, including
pelvis tilted to the right; 1-inch actual shortening ol
the right leg, which was not apparent; mild tenderness
in the superior edge of the right trapezius muscle; and
resulted in diagnoses of myositis, recurrent, trapezius,
right, and of shortening of the right Jeg, undetermined.
X-ray of the cervical spine revealed the presence of
minimal hypertrophic arthritis; the lumbar spine
showed normal vertebral bodies, in good alincment,
with normal interspaces, and the pelvis was negative
for bone or joint pathology. Examination by speech
audiometry disclosed speech reception decibel loss of
zero in the right ear and 28 in tho left. Discrimination
ability was 100 percent, right, and 90 percent, left.
Diagnosis was reported as defective hearing, left,
perceptive typo, and defective hearing, right. A
"great-sized" mass was found in the right inguinal
area, described as complete, reducible and operable.
THE LAW AND REGULATIONS
The term "World War I I " means the period begin-
ning on December 7, 1941, and ending on December 31,
1946, and the term "Korean conflict" means tho period
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICE AND DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP
TRANSMITTED TO THE BOARD OF VETERANS- APPEALS LAW, OP THE BOABD OF VETERANS' APPEALS

May we point out to the Bonrd, as noted above under beginning on Juno 27, 1950, and ending on January 3 1 ,
the military medical records, the column of blood pres- 1955. Title 38, United States Code, section 301.
sure readings indicate that in the main these blood Servico connection may be granted for a disability
pressure readings are always in the upper levels of high incurred or aggravated during service, title 38, United
normal with the possible'exception of the read'jig on States Code, section 310, and for any disease diagnosed
Mav 13, 1959, of 122/78. after discharge, when all of the evidence, including that
'therefore, it is contended that this case does warrant pertinent to service, establishes that tho disease was
a wartime service connection since it is shown and since incurred in servico (CFR sec. 3.303(D)).
it cannot be attributed to elsewhere that the veteran There is provision for granting wartime service
did suffer with the hypertensive cardiovascular disease connection for arteriosclerosis and for arthritis incurred
starting in 1946 and that the readings within the upper during servico in World War I I or during the Korean
limits of normal very clearly indicate a continuation conflict or which was manifest to a degreo of 10 percent
and continuity of that hypertensive heart disease to a or more within 1 year following dischargo from such
point where arteriosclerotic heart disease was finally wartime service, title 38 United States Code, sections
diagnosed in 1959. Therefore, it is contended that the 310,312.
service connection should bo granted on a wartime DISCUSSION A N D EVALUATION
basis. In further rebuttal to the decision by tho
regional office, it. is not considered that the blood In substanco, the contentions on appeal with refer-
pressure readings of March 21, 1949, and June 16, 1950,ence to wartime service connection for arteriosclerotic
which are the only two occasions the VA state that the heart disease are that "hypertension" was found on
blood prcsauro was normal in all the readings, are separation from service in 1946 and that blood pressure
readings "within the upper limits of normal" very
sufficient rebuttal to the fact that there is a continuity
and a continuation of tho hypertensive-heart disease toclearly indicated a continuity of hypertensive heart
disease to a point where arteriosclerotic heart diseaso
a point where it progressed to an arteriosclerotic heart
disease. Again may we point out that the VA has a was diagnosed in 1959.
responsibility and that this responsibility is not fully While tlie reading of 150/100 was recorded in January
accorded in the rating of tho above case. Certainly 1946, during a separation examination, and represented
the veteran does not know anything about VA matters an elevation in blood pressure above that reported sub-
and of a certainty, concerning VA procedure and regu- sequently in the service records, it does not justify a
lations. In the instant case, the findings within tho finding of hypertension. "Normal" blood pressures
file and within the record very clearly indicate the con-
vary for different people and the same person may have
tinuity of tho disease very much beyond any area of different pressures under different circumstances. A
speculation or remote possibilities. Keep in mind that finding of hypertension requires persistent presence of
the veteran has shown the continuous existence of a high blood pressure, and arteriosclerosis may occur
hypertension from tho original reading through the from long-continued hypertension.
various readings from that date within the upper The evidence does not show the existence of hyper-
limits of normal. tension during World War 11 service nor persistent high
blood pressure during Korean service. No cardiac
Further, it is an accepted medical fact and principle
that arteriosclerotic heart disease and hypertensive complaints were reported and heart disease was not
heart disease are known only to become more severe as diagnosed until 1959. There is no medical evidence
time goes on rather than better themselves in any way. upon which inception of arteriosclerotic heart disease
It is requested that the contention stand that the may be found to have been incurred in World War I I
veteran should receive wartime servico connection for or Korean conflict service, nor that it was manifest to a
tho arteriosclerotic heart disease and that service degree of 10 percent within l year after tho termination
connection should also be granted for those conditions of these wartime periods.
which amended tho appeal. An examination of the record reveals findings of
cervical arthritis in October 195,6 and of trapezius
STATEMENT OF C A S E FOR APPELLATE R E V I E W myositis in April 1957. I t may not bo concluded that
the findings with reference to arthritis in service
ISSUE
showed disablement to a degree of 10 percent within
1. Service connection for heart disease as a wartime the presumptive period following the end of the Korean
basis. Hypertension noted and recorded on physical. conflict. However, the evidence does justify the grant
STATEMENT OP PACTS PREPARED BT THE REGIONAL OFFICE AND
TRANSMITTED TO THB BOARD OF VETERANS' APPEALS
examination at time of discharge January 11,1946, a t
Camp Shelby, Miss.
MILITARY MEDICAL RECORDS
September 27, 1935: Induction exam negative.
Undated exam: (Probably August 24, 1942)—nega-
tive.
January 11, 1946: Discharge exam B P 150/100.
Pulse 86, after exercise 102; 2 minutes after exercise 80.
X-ray of chest no significant abnormalities.
March 21, 1949: Entrance exam no dis. B P 138/86,
Medical history, Form 89, negative.
June 16, 1950: Discharge and reenlistment exam
negative, B P 130/80. Pulse sitting 82, after exercise
104; 2 minutes after 82. Chest X-ray, negative.
May 11, 1945: Treated F.U.O. 2 days' duration—
102.8.
H.R. May 23-June 7, 1950: 1st, 2d, and 3d degree
burns, left leg and hand. Accidentally incurred wben
lighter fluid ignited.
H.R. February 13-Marcli 3, 1952: Sinusitis acute
maxillary.
H.R. October 18-20, 1952: Pharyngitis acute;
nausea, vomiting and dizzy.
January 9, 1953: Headaches over eyes. Impression:
Sinus headache.
March 18 and 19, 1953: Mild pharyngitis and ton-
sillitis.
August 10, 1953: Blisters on both feet.
October 15, 1953: Headaches and cough, sinus
condition.
October 10, 1953: Excuse duty.
October 17, 1953: Treatment given.
August 26, 1954: Excuse prolong standing and
marching.
December 20, 1954: Pretibial infection.
February 21, 1955: Common cold.
February 24, 1955: U R I treated.
February 7, 1956: Deformity 5th right finger, old
injury.
April 24, 1956: X-ray right 5th finger—no definite
bony pathology, deformity of finger. Old tear of volar
capsule of proximal interphalangeal joint result of
injury in 1944.
October 3, 1956: Pain in neck 2 years. X-ray cervi-
cal spine negative. Given heat and mbdowns.
April 20, 1857: Trapezius myositis no evidence cervi-
cal root syndrome.
April 26, 1957: Diarrhea also trapezius.
May 3, 1957: Epigastric distress, GI series; hiatus
hernia. .
DECISION. CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW. OP THE BOARD OP VETERANS' APPEALS
of peacetime service connection for arthritis and for
right trapezius myositis. Defective hearing was dis-
closed during the examination of the veteran for dis-
charge purposes and confirmed by official examination
some 5 months later. These findings are sufficient to
establish the inception of this condition in peacetime
service.
There is no etiological relationship between the
inguinal hernia, diagnosed in May 1960, and the
herniae hiatus found in service, nor does the evidence
show that the inguinal hernia was incurred in service
or attributable to an incident occurring in service.
This condition was not found on the examination for
discharge. T h e evidence does not warrant a conclusion
that tjhe shortened right leg was in any way connected
with senrke—_
FINDINGS OP FACT
(1) Appeal was filed within 1 year from the date of
the denial action in question.
(2) The evidence does not show the existence of
hypertension during World War I I or the Korean con-
flict and arteriosclerotic heart disease was not incurred
in wartime service nor within 1 year following termina-
tion of the Korean conflict.
(3) Arthritis of the cervical spine, myositis of the
right trapezius and defective hearing were incurred in
peacetime service.
(4) Shortening of the right leg and inguinal hernia
were not found in service nor does the evidence show
that these conditions may be attributed to service.
FINDINGS OP PACT AND CONCLUSIONS OF LAW PREPARED BT LAW
STUDENTS PROM THE STATEMENT OF PACTS WHICH APPEARS
IN THE FIRST COLUMN
d
>
FINDINGS OP PACT
w
(1) Claimant served in the active military service for
21 years from 1935 to his retirement in 1959. H e was <
discharged in 1946 and reenlisted in 1949.
(2) His medical record for his 1935 induction exami-
S
nation was not put into evidence. The 1946 discharge
examination notes blood pressure was high at 150/100
and shows none of the above disorders. His 1949 reen- O
listment physical placed his blood pressure in the high-
normal range—138/86. This examination listed no
other disabilities. <
(3) The claimant's other blood pressure readings were H
138/86 on March 2 1 , 1949; 130/80 on Juno 16, 1950;
and 122/78 on May 13, 1959. On May 25, 1959, he H
was diagnosed as having arteriosclerotic heart disease.
Claimant contends that the high reading of January
1946, taken together with the other readings which were
>
in the high-normal range, with the exception of the
M a y 1959 reading, discloses a hypertensive cardiovas-
cular starting in 1946, which continued and culminated a
in the arteriosclerotic heart disease diagnosed in 1959.
He, therefore, seeks a wartime connection for the
arteriosclerotic heart disease.
(4) In October 1959 the claimant was treated in
service for a pain in the neck of 2 years' duration. An
X-ray of the cervical Bpine taken at that time showed
negative. A VA exam performed on .May 18, I960,
within 5 months after the claimant's discharge, noted
an X-ray of the cervical spine showing minimal hyper-
trophic arthritis. On Aprd 20, 1957, ho was diagnosed
as having trapezius myositis which showed up on the
above-mentioned VA examination.
(5) The VA examination also notod a 1 inch shorten-
ing of the right leg, defective hearing condition and
inguinal hernia.
STATEMENT OP PACTS PBEPABED BY T B B REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETEnANS' APPEALS
M a y 15, 1957: Small hiatus hernia.
September 18, 1957: Pain, left testicle. Mild trauma
2 days previous. No enlargement.
September 24, 1957: Pain, left tostiele. Tenderness
slight enlargement of left epididymis.
September 25-October 7, 1957: Clearing and no
evidence inflammation.
September 19, 1957: Summary of defects: Having
recurrent bouts of epigastric distress which required
X-ray investigation ana proved to be hiatus hernia.
M a y 8, 1958: Fell from truck on back and hips.
April 27, 1959: Blurred vision eyo clinic.
M a y 13, 1959: Complaints left anterior chest pain
with radiation: dyspnea after exercise, pedal edema.
B P 122/78; ErCG negative. Impression: Angina.
May 25, 1959: Angina-like pain past 6-8 weeks.
Exam, negative. Master 2-step positive. Diagnosis
arteriosclerotic heart disease with angina pectoris.
Change profile permanently precluding physical effort
such as marching, calisthenics, etc.
June 21, 1959: B P 144/90 eyegrounds reveal AV
niching. Diagnosis arteriosclerotic neart disease mani-
fested oy angina pectoris and angina decubitus.
July 20, 1959: Chest pain radiating down left
shoulder.
July 22, 1959: Arteriosclerotic heart disease. Admit.
H R July 23-December 15, 1959: Arteriosclerotic
heart disease; hernia diaphragmatic. On September
11, 1959, hyperopia and presbyopia. Discharge from
service: Arteriosclerotic heart disease manifested by
angina pectoris with approximate date of origin 1958—
He gave a history of mild substernal pains commencing
about December 1958.
VETERANS' ADMINISTRATION MEDICAL RECORDS
May 18, 1960: Exam VA AGRO.PEKG sinus brady-
cardia essentially normal. B P 112/82, 110/78, 120/90,
120/76, 110/82. No cyanosis or dyspnea- No neck
vein engorgement in erect position but mild engorge-
ment noted bilaterally in supine position. Peripheral
vessels are normal, tibials are good. Heart action is
good with regular sinus rhythm. No murmurs noted.
Heart normal in size by percussion. Right little finger
diagnosed as mallet finger. Mild tenderness in superior
edge of right trapezius muscle diagnosed myositis, recur-
rent trapezius right and has 1-inch shortening of right
leg undetermined. Perceptive type defective hearing
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, OF THE BOARD OP VETERANS' APPEALS
CONCLUSIONS OF LAW
(1) The Board has jurisdiction of the issues on appeal
under the provisions of title 38, United States Code,
section 4004.
(2) The grant of servico connection on a wartime
basis for arteriosclerotic heart disease is not warranted.
(3) The grant of service connection on a peacetime
basis is warranted for arthritis of the cervical spine,
myositis of the right trapezius and for defective hearing.
(4) Service connection is not warranted for shorten-
ing of the right leg or for inguinal hernia.
DECISION
To the extent indicated, the appeal is allowed.
FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BV LAW
STUDENTS FROM THE STATEMENT OF FACTS WHtCU APPEARS
IN T B E FIRST COLUMN
(6) Claim was filed and on August 12, 1960, a peace-
time servico connection was granted for arteriosclerotic
heart disease. He was denied servico connection for
myositis trapezius, arthritis of the cervical spino, short-
ening of the leg, defective hearing and inguinal hernia.
(7j The claimant's appeal to tho regional office for
wartime service connection for tho heart diseoso was
turned down. Also, tho rest of the rating was con-
firmed. From this decision, tho claimant appeals to
this Board.
CONCLUSIONS OP LAW
(1) Tlie claimant is a veteran of active military ser-
vice, both during a period of war and peacetime and was
honorably discharged within tho meaning of 38 U.S.C.
101.
(2) Consequently, ho becomes entitled under section
310, to compensation for disability resulting from in-
jury suffered or disease contracted in tho line of duty
during wartime. Also, ho is entitled to compensation
for disability incurred in tho line of duty in active peace-
time servico under section 331.
(3) The Board concludes that the ovidenco sub-
stantially supports tho regional offico's determination
that there was no connection between the arterio-
sclerotic heart condition diagnosed in 1959 and the
high blood pressure reading noted In 1040 and, thus, no
wartime service connection for this condition. There
was no abuse of discretion manifest in this determina-
tion.
(4) Inasmuch as the veteran was diagnosed as having
trapezius myositis in 1957 and again in 1060 in tho VA
exam given within 5 months after dischargo, it is clear
that this condition was contracted in tho lino of duty
and the veteran is entitled under section 331 to peace-
time disability compensation. Also, service connection
should have been granted arthritic condition of the
cervical spine that was diagnosed in the VA exam in
1960 and for which the veteran was observed in 1956.
(5) Although service medical records do not indicate
diagnosis or treatment for shortening of the right leg or
defective hearing, it is extremely improbablo that these
conditions, noted on the VA exam within 5 months after
discharge, were contracted in tho interim, especially in
view of the voteran's length of service. Accordingly,
service connection ought to have boon granted.
STATEMENT OP FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
in left with speech reception threshold right 0, left 28
and discrimination ability right 100, left 90. X-ray
of chest showed mild pulmonary scarring. X-ray of
cervical spino shows minimal hypertrophic arthritis and
lumbar spine and pelvis are negative. A right inguinal
hernia and deviated septum are shown. Diagnosed
conditions: (1) Hernia inguinal, right; (2) deviated
septum moderate; (3) hiatus hernia by history; (4)
arteriosclerotic heart disease by history not found;
clinically, this datej (5) burns res. of left leg not found;
(6) defective hearing left and perceptive type and
right.
ADJUDICATION ACTIONS
DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
LAW, OP THE BOARD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
JUDGMENT
In accordance with the foregoing findings of fact and
conclusions of law it is ordered, adjudged, and decreed
that the ruling of the regional office be affirmed as to
the heart disease but that peacetime service connection
be granted for the conditions above referred to in 4
and 5.

January 12, 1960: Compensation claim received

January 12, 1960, alleging arteriosclerotic heart disease
manifested by angina pectoris and decubitus October
1958, diaphragmatic hernia, defective hearing left ear
1954, spine and left hip 1953.
May 18, 1960: 527 from veteran, totally disabled
February 15, 1959. Not gainfully employed due to
SC disabilities.
May 23, 1960: 8-4138, Mrs. Anthony DeRosa, refer-
ring to veteran's inability to work^ 8-4138, Mrs, J. J.
Grant, referring to veteran's inability to work. State-
ment of Florida State Employment Service indicated
chances of placement cannot be considered favorable
duo .to his disability.
August 12 1960: Rating SC granted PTE 60 percent
for arteriosclerotic heart disease and 0 percent mallet
finger—World War II, from December 16, 1959. SC
denied myositis trapezius, right, arthritis cervical spine,
shortening right leg; defective hearing and inguinal
hernia; diaphragmatic hernia rated as not found on last
examination and left hip condition not shown by the
evidence of record.
September 30, I960: Rating granting 100 percent as
Code 18 individual unemployability 100 percent from
December 16, 1959.
January 23, 1961: Confirmed and continued rating
August 12, 1960, and September 30, I960, following 1-9
dated January 11, 1961, and statement from veteran's
representative.
DECIBION OP REGIONAL OFFICE AFTER REVIEW OF
APPEAL AND EVIDENCE

1. The evidence does not warrant the grant of war-

time service connection for reason that one BP reading
of 150/100 on January 11,1946, without otheT findings,
does not warrant the grant of SC for arteriosclerotic
heart disease as incurred in World War II. This one
STATEMENT OF PACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
reading is rebutted by normal B P readings taken on
March 21,1949 and Juno 16,1950, and tho first findings
of a heart condition ore not shown until 1959. a date
too remote from wartime service to bo considered as
presumptively service connected. Previous ratings ore
confirmed.
STATEMENT OF C A S E FOR APPELLATE R E V I E W BY
ACCEDITED REPRESENTATIVE
ISSUE
Whether or not widower was permanently incapable
of self-support duo to physical or mental disability at
the time of tho veteran s death on August 4, 1952.
MILITARY RECORD
Veteran entered on active duty on May 31, 1918; was
released on July 19, 1919, and honorably discharged on
September 8, 1920, therefore, veteran's service data
meets tho basic requirements of entitlement to pension.
Since this is the case of a widower, tho service medical
records arc not pertinent to the question at issue, as
cited above, at this time.
VETERANS* ADMINISTRATION MEDICAL RECORDS
The rating board synopsis of VA examination of
October 6( 1959, of the claimant is a correct review of
said examination.
ADJUDICATION ACTION
This representative will only discuss the portions of
adjudication action t h a t aro pertinent to the questior
of adjudicative action and evidence as is pertinent to the
question at issue from the file.
EVIDENCE OF RECORD
VB 8-534: Application for dependency and indem-
nity compensation or death pension by widow or child,
filed by the widower, and received by the Veterans'
Administration on October 24, 1958, showing income
from Social Security of S514.80 annually and State
welfare S240 annually.
Statement of (widower), March 31, 1959, to the
effect that the widower does not own any property, has
no money in the bank and his only income is $64 per
month from Social Security, with itemized expenses of
S60 per month; medical bills $50 per month, advising
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OP FINDINGS OF PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
LAW, OF THE BOARD OP VETERANS' APPEALS STUDENTS FROM THE STATEMENT OP FACTS WHICH APPEARS
IN THE FIRST COLUMN
CASE N O . 9
VETERANS' ADMINISTRATION, ISSUE
BOARD OF VETERANS' APPEALS,
April 3, 1961. Whether or not widower was permanently incapable
of sell-support duo to physical or mental disability at
Appellant represented by the American Legion. tho time of the veteran's death on August 4, 1952 (?).
THE ISSUE
This case is before tho Board of Veterans' Appeals
for consideration of an appeal filed by the widower of
the veteran. The appeal, which was filed on January
16, 1961, is from the docision of the Director of Com-
pensation and Pension Service, dated January 11, 1961,
which held in Bubstance that the appellant is not shown
to have been permanently incapable of self-support duo
to mental or physical disability ot the time of the death
of his wife. The appellant and his representative are
of the opinion that tho evidence submitted by them
establishes that the claimant was incapable of self-
support by reason of certain disabilities at the time of
the dentil of his wife and, in fact, for some time prior
thereto and therefor is eligible to receivo bonefitfl on
account of her service and death.
THE EVIDENCE
The appellant's deceased wife was born October 27,
1898, entered military service on May 31, 1918, and
was released from activo duty on July 19, 1919, and
finally discharged on September 8, 1920. She died on
August 4, 1952, of cardiovascular disease.
In September 1958, the appellant filed a formal appli-
cation for death benefits as the widower of the veteran.
He stated in this application that he was born on
September 10, 1885, t h a t he was not employed and had
no income other than social security benefits and also
S240 a year from the State welfare board.
The claimant was examined for the Votcrans' Admin-
istration on October 6, 1959, and was found to have
diabetes mellitus, coronary arteriosclerosis, enlarged
prostate, pyelitis, cystitis, and arthritis. Information
subsequently received shows that ho has diabetic
retinitis. The report of examination indicates that he
has a history of a gradually increasing disability due to
the conditions which were diagnosed oy the examining
physicians. The veteran's complaints were recorded
STATEMENT OF PACTS PREPARED BV THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
that expenses applied from 1952 to 1059, and stating
that he had not Been employed since death of veteran
and was incapable of self-support at the time of death.
Physical examination on October 6, 1959, shows 74-
year-old white malo. Diagnosis of diabetes mellitus,
coronary arteriosclerosis, prostatic enlargement, pye-
litis, cystitis, and arthritis. Signed: James L. Cun-
ningham, M . D .
July 22, 1959, statement of C. B. Jones, M.D,, shows
diabetes mellitus, chronic, fasting blood' sugar 154;
diabetes; retinitis; arteriosclerosis, advanced; arthritis,
multiple, chronic; muscular atrophy, general; and the
widower remains either in bed or in a wheelchair at all
times and IB unable to walk without an aid. Ho is
totally and permanently disabled.
Statement of C. B. Jones, M.D., October 21, 1959,
stating that widower had been on the ailing list for the
past 20 years with arteriosclerosis and diabetes mellitus;
t h a t he and his wife, the veteran, owned a small
grocery store, and they operated it. The widower
began having pains precordium and acute dyspnea
some time about 1949 or 1950, and ho would sit on a
box while his wife operated the store alone. Sometime
in 1952 his wife died and t h a t left him alone. H e
tried to operate the store, b u t when he had pain and
dyspnea ho would have to Bit down. Customers would
help themselves. Some would pay, others would not.
The doctor further stated that he advised him to close
or sell out, which he did, now he is at home an invalid
and then in a short time, he predicts, he will pass on
into the other world.
Statement of Ida L. Veazey, November 4,1959. Sho
states t h a t she knew tho widower for 35 years; that he
formerly operated a store together with his wife until
he had an operation in 1946; after t h a t he was not able
to work in the store and after the death of the veteran
he had to sell the store in 1952 since he was not able to
operate it.
Statement of Frank Puller, November 4, 1959. He
stated that he had known the widower for over 50
years; t h a t he owned and operated a grocery store
during this period, about 1940 or 1947 h e had a very
serious operation and was no longer able to work.
His wife operated the store which was his sole income
until her death in 1952.
Additional statement of the widower. He stated
that the last time he operated the store was in 1946;-
after that he had an operation and was not able to
operate the store, and it was operated by his wife after
1946.
DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
LAW, OF THE BOARD OP VETERANS' APPEALS
as weakness, dyspnea, vertigo, and nocturia. H e also
complained of pain in his joints and backache.
The file contains several statements from Dr. C. B.
Jones, the appellant's personal physician. Dr. Jones
has stated that he had been the appellant's physician
for some 20 years and t h a t to his knowledge he had not
been able to do much work for sometime prior to the
death of his wife.
The information on file shows that the appellant and
his wife operated agrocery store under a franchise from
the Piggly Wiggly Co. and that while the wife was living
he acted as the butcher, cutting and wrapping the
meats, while she acted as cashier and generally managed
the store and kept the books. I t appears that the
franchise was in tho appellant's name and for that
reason he signed all checks. The Piggly Wiggly Stores
are self-service stores in which the customers pick the
groceries they want and pay the cashier at tho door for
their purchases.
This case has been investigated on more than one
occasion by field examiners of the Administration, who
interviewed the veteran's physicians, Dr. C. B. Jones
and^Dr. Louis Orr, the latter having performed a trans-
urethral resection on the appellant in 1947. One of tho
field examiners who investigated tho case secured a
statement from Helen E. Beville who was employed
by the appellant after the death of his wife apparently
because of his inability to carry on the business by
himself. Miss Beville stated, in part:
I started working for him in September or October, 1952. I
stopped working for him early in 1954. Mr. Moore didn't do
much of anything but sit behind the cash register. He was not
able to stand on nis feet very much. A little * * * boy and I
had to do all the work. We had to keep the stock up, keep the
place cleaned Up, wait on the customers, and everything else.
The claimant had this place behind tho cash register with a chair
where he sat. H e would open the store up in the morning, and
often would go back t o his house. The last year I worked for
him he went back home almost every morning after he opened
the store • * *
Dr. Jones, in a deposition made before the field ex-
aminer on December 8, 1959, stated, in part:
At the time of the death of the veteran, and for some time
prior thereto, the claimant was wholly dependent on hig wife for
his financial, and al! other care including maintenance and sup-
port. The veteran was his sole and complete support in every
way. After her death, he attempted to carry on the business.
H e was unable to do so due to his mental incapacity and physical
condition. For a t least 5 years prior to the veteran's death, the
claimant was totally incapable of earning a living due to his
mental and physical incapacities. He was totally dependent on
his wife for his every need.
The grocery store in question was sold by the appel-
lant in 1955, for the sum of $3,500. The price for which
BTATBHBNT OF FACTS PBBPABBD BT THE REGIONAL OFFICE AND
TBANBHrtTBD TO THE BOABD OF VETERANS' APPEALS
Based on tho above evidence a field examination was
requested and apparently on the first field investigation
there was some difficulty in the machine because the
statements are not complete and unsigned, but a deposi-
tion of Mr. Frank Fuller, cited as exhibit No. c on field
examination report of December 9, 1959, revealed that
Mr. Frank C. Fuller was a former employee of tho
widower and started working for him around 1920 and
quit in 1946; that at that time he was doing most of tho
buying and he had a Btore at the other end of town and
his wire stayed ond looked after that one. He was at
tho first store, and further that he was not able to do-
voto much time to the business because he was unable
to, duo to operations. He would just lay around the
store when he was with mo (Frank Fuller) but I wasn't
with him but about 4 or 5 years and that he (Mr. Fuller)
and the veteran, conducted most of the business. He
further stated that he wasn't with the widower 5 years
before the veteran died.
Deposition of tho widower, reported as exhibit A in
field investigation report, revealed that he was 74 years
old. He stated that be sold his grocery business in
about 1955 and, of course, while ho was there his legs
and everything Bwelled up so that "I couldn't hardly
make it and that was the time I would sell out and Dr.
Orr operated on mo and I had to quit. Of course, up
until that time I did a little bit around the store." He
considered himself disabled prior to 1952; that ho was
getting weaker a good while before the veteran died,
that is prior to maybe 1949 or some time there. He
doesn't know, but that ho went to Orlando and had an
operation. His disability affected him mostly in his
lcgB and knees and that he has practically no limited
use of them. Can't put them on the ground and must
use a walker. He further gave names of Frank Fuller
and Mrs. Bevelle who had worked for him.
Although it is cited in the field investigation as ex-
hibit B, I do not find a deposition before tho field in-
vestigator of Dr. C. B. Jones reported on December 9,
1059.
Another field investigation was conducted beginning
on February 18, i960, by another field investigator and
in statement of February 18, I960, Frank Fuller stated
to tho effect that the veteran and claimant operated
the business together until tho veteran's death; that he
was an old cracker butcher and she ran the rest of the
store. When he Baid the widower was a butcher, he
meant that ho cut the meat in the store; that ho visited
them about once a month to the best of bis recollection,
and the widower was in bed about half the time that he
visited there. The franchise belonged to the widower
but the veteran took care of the money and that after
DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BT LAW
LAW, OP THE BOABD OF VETERANS* APPEALS STUDENTS FBOM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
this store was sold indicates that it was not doing much
business at the time of sale.
Thefilealso contains statements and depositions from
Frank Fuller, a former employee of the appellant and
his wife, and Ida L. Veozey.
THE LAW AND BEGULATIONS
Title 38, United States Code, section 102 provides for
payment of benefits to tho widower of a female veteran
if such widower is incapable of self-maintenance and was
permanently incapable of self-support due to physical
or mental disability at the time of the death of his wife.
DIBCTJ88I0N ANB EVALUATION
The veteran in this case died in August 1952. The
appellant was then 67 years of ago. The evidence of
record shows that he suffered from cardiovascular
disease, diabetes mellitus, arthritis, pyelitis and cystitis
when examined by the Veterans' Administration in 1959.
According to the statements of Dr. Jones, some of theso
conditions existed as early as 1947. The evidence on
file establishes that the appellant underwent a transure-
thral resection in 1947. While tho appellant's wife
was living she helped him manage ana operate the
grocery store which ho owned. After her death, he
was unable to run the store and for that reason em-
ployed Helen E. Beville and a young boy. This WOB
only a few weeks after his wife's death. According to
his physician, Dr. Jones, he had been unable to do much
worK even before hia wifo died. The disabilities from
which he is now suffering and which were diagnosed by
a medical examination in 1959 ore of a progressive
nature and apparently had their beginning before the
death of the veteran. Although the appellant kept
his store for 2 or 3 years after the death of his wife, it
would appear that he depended on others to operate it
for him and that the operation was unsuccessful with the
result that ho was forced to sell it at a very low price;
namely, $3,500.
In view of the appellant's age and the nature of the
disabilities from which he is suffering, it would appear
reasonable to conclude that he was permanently
incapable of self-support at the time of the death of
his wife.
FINDINGS OP PACT FlNDtNOS OF PACT
In view of the foregoing, and after a careful study (1) The claimant is a 74-year-old widower of a veteran
of the entire evidence of record, the Board of Veterans who served in World War I, having entered tho scrvico
Appeals finds: in May 1918 and been honorablo discharged in July
(1) That the appeal was filed within 1 year from tho 1919.
date of notice of the adverse decision to the appellant.
STATEMENT OP FACTS PREPARED BT THE REGIONAL OFFICE AND DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BT LAW
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS LAW, OF THE BOARD OP VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
^4
she died he visited two or three times and to the best (2) T h a t the appellant's wife served with the Armed (2) The Board finds that tho claimant had operated
of his recollection the widower hired a woman to do Forces of the United States during World War I for a retail grocery store with his wife. His wife died on OS
the cashiering and he did some [italic supplied} of the more than 90 days. August 4, 1952.
butchering. He was vague about matters, but he (3) T h a t the appellant's wife died on August 4,1952. (3) Claimant's health began failing. H e underwent
thought that after the veteran died, the claimant (4) T h a t the appellant was suffering from cardio- a serious operation in 1946,. H e began having pains
continued in the store for about 2 years; that the vascular disease, diabetes mellitus, arthritis, and other precordium and acute dyspnea in 1949 and, with the
veteran managed the business while she lived and that disabilities in August 1952 and is still suffering from exception of doing some of tho butchering work, his
the claimant could not havo run the business without these disabilities. wifo wholly operated the store until the time of her
her. The only income they had was the income from (5) T h a t the appellant was 67 years of age a t the death. Ho retained the right to write checks. His
the store, time of the death of hia wife and is now over 75 years disability affected his feet and legs and, because ho had
I think it is important in this case to point out the of age. practically no use of them, ho spend the major part of
comments by the field investigator on the report of his time sitting around the store. Claimant was unable a
February 18, 1960. In the comments Mr. Martin, the to operate tho store and, at the time of his wife's death,
investigator, stated that the claimant and his wife ran he was totally dependent on his wife.
ft
Piggly Wiggly store together; t h a t he did the butcher- (4) He attempted to operate the store after his wife's >
ing and she took care of all the other matters in connec- death but was forced to sell out in 1955. H e had hired
tion with the operation of the store and that it appeared, a woman to perform the same services as his wife but
while she did all the banking and bookkeeping, her the small business could not support an outside salary. P3
husband rotainod the right to sign checks. There is Ho depended on this woman, in tho samo way t h a t be
no question that she did the major portion of the work, had his wife, to operate the business while he attempted
while he retained the semblance oj authority in his own to keep the books and handle tho cheeking account.
hands. (Italic supplied.] Mr. Martin further states All the evidence of record clearly shows that it would
that after the veteran's death the claimant hired a have been impossible for the claimant to operate the
woman to perform the same services performed by the business and earn a living alone. Further, it shows
wife, b u t tho business was unable to support outside t h a t because of his age and illnesses t h a t other em-
o
help and t h a t it appears t h a t to the extent that the ployment was impossible.
business was small and could not pay an outside salary, (5) The claimant's only income at the time of his
tho husband was totally dependent on his wife. Further, claim was $514 annual social security and $240 annual - H
the witnesses all agree t h a t it would have been impos- State welfare payment. H
sible for tho claimant to operate the business and earn (6) The claimant filed on September 25, 1958, b u t W
a living alone. was denied. This was upheld on appeal by the regional W
Based on tho evidence cited above, the rating board office on the basis t h a t the evidence does not show that >
held on February 25,1960, t h a t the claimant was shown he was incapable of self'maintenance and permanently
to have operated a Piggly Wiggly franchise store with incapable of Belf^support at tho time of the veteran's w
his wife until the time of her death on August 4, 1952, death. From this ruling the widower takes appeal to
and that tho claimant did the butchering and his wife
CONCLUSIONS OF LAW
this Board. o
took care of all the other matters in connection with CONCLUSIONS OF LAW
the operation of the store. After the veteran's death I n view of the foregoing findings of /act, the Board of
>
the claimant hired a woman to perform the same serv- Veterans Appeals concludes: (1) Title 38 U . S . C , section 541 provides that tho
ices performed by his wifo. According to the claimant's Veterans' Administration shall p a y a pension to tho
statement, he continued to operate tho grocery Btoro (1) T h a t the appeal was filed within the time limit widower of each veteran of World War I, who meeta
until sometime in 1955 at which time he sold the store set by law and t h a t this Board has jurisdiction of the the service requirements of section 521. The veteran
and the evidence of record docs not establish that the issue under 38 U.S.C. 4004 and 4005. meets the service requirements of section 521 since she
claimant was incapable of self-maintenance and per- (2) T h a t the appellant is incapable of self-mainte- served for more than 90 days during World War I.
manently incapable of self-support due to mental or nance and was permanently incapable of self-support (2) The Board concludes from all the ovidence of
physical disability on August 4, 1952, the date of the due to physical or mental disability at the time of the
veteran's death within the meaning of 38 U.S.C. 102. record t h a t the claimant meets the requirements of
veteran's death. section 102(b) which extends the word "widow" used in
The accredited representative requested on April 29, section 541, to include " * * * the widower of any female
1960, t h a t the case be called to Washington for an veteran if such widower is incapable of self-maintenance
administrative review, and on tho administrative re- I t is, accordingly, the decision of the Board of Vet- and was permanently incapable of self-support due to
view, remand was requested for further field investiga- erans Appeals that the appellant is eligible to receive physical or mental disability at the time of the veteran's
STATEMENT OF FACTS PBEPABED BY TUB RECIONAL OFFICE AND DECISION. CONTAINING FINDINGS OP PACT AND CONCLUSIONS OP FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
TRANSMITTED TO THE OOABD OF VETERANS' APPEALS LAW, OF THE BOABD OP VETERANS* APPEALS STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIBST COLUMN

tion. On February 18, 1960, Dr. C. B. Jones made the death compensation or pension as the widower of the death." Nowhere does tho law require that claimant
statement that at the time of tho death of the veteran veteran in this case provided other conditions are met. bo so disabled, at the time of the veteran's death, that
and for some time prior thereto the claimant was wholly The appeal is allowed. he make no attempt, albeit futile, to support himself
dependent on his wife for his financial and all other in order to becomo eligible for benefits.
care, including maintenance and support. The veteran
was his solo and complcto support in every way and JUDGMENT
after her death ho attempted to carry on the business,
but was unable to do so due to his mental incapacity In accordance with tho foregoing findings of fact and
and physical condition. For at least 5 years prior to conclusions of law, it is ordered, adjudged and decreed
the veteran's death the claimant was totally incapable that tho claimant be granted pension in accordance
of earning a living due to his mental and physical with tho rate prescribed by section 541.
incapacity as he was totally dependent on his wife for
his every need as had previously been pointed out on
other occasions in statements by the doctor and other
depositions.
Anotherfieldinvestigation was conducted on Septem-
ber 13, 1960, by a different field investigator (making
throe different field investigators that had investigated
this case and interviewed tho same witnesses), and in
the comments by this field investigator he stated that
he contacted Dr. C. B. Jones and it was apparent by
these commonts that Dr. Jones had been contacted so
many times that he was tired of making statements,
but did say that the veteran took care oftho claimant
and ran his store for him from at least as far back as
1940 and that tho claimant sat on an old box in the
store while the veteran did the work. Further, it was
felt by tho field investigator that the persons giving
depositions were truthful and cooperative.
Another statement by Helen E. Beville, in which she
stated that she started working for tho veteran in
September or October of 1952 and that she stopped
working for him early in 1954. Tho claimant didn't do
much of anything but sit behind tho cash register; he
was not able to stand on his feet very much and "a
little colored boy and I had to do all the work. We
had to keep the stock up, keep the placo cleaned up,
wait on the customers, and everything else. The
claimant had a place behind tho cash register with a
chair where ho sat. Ho would open the store in the
mornings and many times would leave and was in bed
on occasions and didn't even come to the store; that
he took care of the books and handled the checks."
She did most of tho buying and had to check and sign
for the meat and groceries that came in and that about
all he did was take care of the books.
CONTENTION OP ACCREDITED REPRESENTATIVE

It is contended by this representative that the state-

ment of case for appellate review by the rating board
STATEMENT OF FACTS PR HPABED BY THE REGIONAL OFFICE AND ) OF FACT AND CONCLUSIONS OP FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
TRANSMITTED TO THE BOASD OF VETERANS* APPEALS iF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS t"- 1
/ I N THE FIRST COLUMN »KJ
is not a complete and proper presentation of the
evidence in the file. As an illustration of this con- 00
tention, the rating board reported, among other things
that the deposition of Frank Fuller, dated January 23,
1960, "estimated that the claimant ran the store 2
years after wife's death." Immediately after this
statement in the deposition to this effect, the deponent
stated and I quote: "she managed the business while
she lived and he could not have run the business with-
out her." There are other depositions in the file that
this representative believes should be taken in their
entire content as a proper disposition of this rase
depends on the entire evidence of record. I would like
at this time to incorporate by reference in this brief
the 646 prepared by this representative on January 30,
1961, and the contentions set out therein as it is r1
definitely the feeling of this representative that when
taking all of the evidence of record, it should be held
that this claimant meets the requirements of title 38,
United States Code, section 102b (Public Law 86-655).

STATEMENT OP C A S E FOR APPELLATE R E V I E W

ISSUE
o
Whether widower was incapable of self-maintenance
and permanently incapable of self-support due to
physical or mental disability at the time of veteran's
death.
MILITARY MEDICAL RECORD w
Not pertinent. 50

VETERANS' ADMINISTRATION MEDICAL RECORDS >

October 6, 1959: Outpatient examination. History w
recorded of gradually increasing disability duo to ad-
vancing generalized arteriosclerosis, diabetes mellitus,
osteoarthritis, pyelitis, cystitis, and coronary heart
disease. Widower's complaints were weakness, dysp-
>
nea, vertigo, nocturia, joint pains, and backache. He
walked with a shuffling gait. There was arcus senilis
and the arteries showed arteriosclerotic changes. The
heart sounds were distant and of poor quality. There
were moderate varicose veins of both legs. There was
stated to be occasional cystitis, pyelitis, and difficulty
in urination. Orthopedically it was stated that there
was arthritis and weakness of the legs and that he could
walk only by use of "walker Bupport." Endocrine
system was stated to be negative except for diabetes
mellitus. Neurological examination noted senile
changes. He was stated to need constant medical
supervision. E K G was normal. Diagnoses: Diabetes
STATEMENT OP PACTS PREPARED BY TUB REGIONAL OFFICE AND t OP PACT AND CONCLUSIONS OP FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS P VETERANS* APPEALS STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
mellitus; coronary arteriosclerosis; enlarged prostate;
pyelitis; cystitis and arthritis.
ADJUDICATION ACTION

August 18, 1952: Application for burial allowance

received together with certificate of veteran's death on
August 4, 1952, and bill for funeral services.
October 17, 1952: Burial allowance paid.
September 25, 1958: Received claim from widower,
December 19, 1958: Letter to claimant requesting a
ovidenco of incapability of self-maintenance and self-
support due to physical or mental disability at time of
veteran's death.
January 19, 1959: Received statement from Dr. >
C. B. Jones regarding claimant's physical disabilities.
March 12, 1959: Supplemental letter requesting in-
come and employment information and evidence of
incapability of self-support at time of veteran's death.
April 6, 1959: Statement of claimant received alleging
no employment since death of veteran and that he was
incapable of self-support at the time of veteran's death.
Statement of Dr. C. B. Jones that with his wife's
death, claimant had to continue operation of the store -o
but collapsed; that claimant is a complete invalid and
has been unemployed since the death of his wife.
May 19, 1959: Physical examination ordered.
October 9, 1959: Report of physical examination re- w
ceived. Additional information requested from claim- H
ant with respect to his operation of a grocery store M
subsequent to his wife's death. Information also W
requested from claimant's physician regarding date of >
medical treatment rendered claimant.
October 23, 1959: Dr. C. B. Jones' statement re- w
ceived to effect that claimant's illness commenced
about 1949; that after veteran's death he tried to o
operate the store but when he had pain and dyspnea,
he would have to sit down leaving customers to serve >
themselves.
November 12, 1959: Statement of Ida L. Veazey
that claimant was not able to do any work in the store
after 1946, and that he had to sell the Btoro in 1952.
Statement of Frank Fuller that after a serious illness
in 1948 or 1947, claimant was no longer able to work
and veteran operated Btore until her death. State-
ment of claimant that the last date he operated the
store was in 1946,
November 17, 1959: Field examination requested.
February 23, 1960: Report of field examination re- ^1
ceived. Deposition of Frank Fuller that after veteran's
death, he visited claimant about two or three times; CD
STATEMENT OP PACTS PREPARED BT THE REGIONAL OFFICE AND DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS LAW. OF THE BOARD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF PACTS WHICH APPEARS
IN THE FIRST COLUMN
that to the best of hia recollection, claimant hired a
woman to work as cashier while claimant did some of
the butchering. Estimated that claimant ran the
store 2 years after wife's death. Deposition of claim-
ant that be sold grocery business in 1955 and that up
until that time he did a little bit around the store.
Deposition of Dr. C. B . Jones that at the time of
veteran's death, claimant was wholly dependent upon
her for maintenance and support but that after her
death, claimant attempted to carry on the business.
February 25, 1960: Rating decision that claimant
not shown to have been premanently incapable of self-
support at time of veteran's death.
August l, 1960: Claim reviewed by Director, Com-
pensation and Pension Service, at request of accredited
representative. Directed t h a t certain additional evi-
dence be obtained.
September 15, 1960: Field examination report re-
ceived. Reported t h a t claimant underwent trans-
urethral resection in 1947 with normal recovery.
Deposition of Helen Beville t h a t she worked for the
claimant from the fall of 1952 until early in 1954.
States that claimant did not do much of anything
except sit behind the counter (cash register). He would
also open up the store in the morning, but would often
go back home. He took care of the books and handled
the checks.
September 26, 1960: Decision holding claimant not
incapable of self-support at time of veteran's death
confirmed.
January 11, 1961: Decision of rating board concurred
in by Director, Compensation and Pension Service.
January 16, 1961: Claimant appeals VA decision.
Accredited representative discusses the evidence on
VA Form 1-646. One issue involved, namely, was
claimant incapable of self-maintenance and perma-
nently incapable of self-support at time of veteran's
death.

DECISION OF REGIONAL OFFICE AFTER REVIEW OF APPEAL

AND EVIDENCE

The evidence does not show that claimant was in-

capable of self-maintenance and permanently incapable
of self-support at tho time of veteran's death.
STATEMENT OF PACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OP VETERANS' APPEALS
STATEMENT OP C A S E FOR APPELLATE R E V I E W
ISSUE
1. Restoration of service connection for thrombo-
phlebitis, left leg.
MILITARY MEDICAL RECORDS
July 6, 1942: Induction examination shows varicose
veins, lower abdomen and scar, appendectomy.
March 19, 1943: Admitted to station hospital follow-
ing examination for oversea service, with a diagnosis
of thrombophlebitis, chronic, femoral vein, left, with
partial obstruction and varicosities, abdominal veins,
lower, severe.
April 27, 1943: Veteran given CDD from Army by
reason of thrombophlebitis, chronic, left and varicosi-
ties, lower abdominal veins, severe, on basis of history
given by veteran that ho had developed a thrombo-
phlebitis following appendectomy. Service department
held that the conditions existed prior to service and not
aggravated by such service,
VETERANS' ADMINISTRATION MEDICAL RECORDS
April 24, 1945: Initial examination by the Veterans'
Administration for compensation: History given of
having developed phlebitis after appendectomy. Veins
in abdominal wall became much larger after induction
into service, veteran stated he had had no treatment
since discharge. Examination revealed mild residuals
thrombophlebitis of left leg and moderately varicosed
veins, abdomen, nonsymptomatic,
October 2 1 , 1940: Veteran reexamined in connection
with his claim. He complained of swelling in left leg,
after standing or walking for 1 to 2 hours. Examina-
tion of the left lower extremity showed diffuse enlarge-
ment, mild due to hyperplasia of subcutaneous tissues
secondary to chronic thrombophlebitis, sequel of ap-
pendectomy. There was some tenderness to pressure
over medial aspect of the left thigh, along the course of
great saphenous vein. No cyanosis, discoloration,
ulceration, or induration. He was also shown to have
varicose veins of the abdomen, with evidence of collat-
eral circulation as the result of obstruction of the left
femoral vein.
ADJUDICATION ACTION
February 16, 1945: Compensation claim received for
aggravation of varicose veins of abdomen. Also sub-
DECISION, CONTAINING FINDINGS OP FACT AND CONCLUSIONS OP FINDINGS OF PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
LAW. OP THE BOARD OP VETERANS' APPEALS STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN TUB FIRST COLUMN
CASE N O . 10
VETERANS' ADMINISTRATION, This is a proceeding instituted pursuant to VAR
BOARD OF VETERANS' APPEALS, 1105(D) to sever service connection for thrombophle-
May 8, 1961. bitis of the veteran's left leg. The issues for decision
Appellant represented by the American Legion. are: (1) Whether the regional office uBdi the proper
regulation for these proceedings; (2) whether the evi-
dence establishes that service connection for tho vot-
THE ISSUE J
cran's preservice thrombophlebitis, on tho basis of ag-
gravation, is clearly and unmistakably erroneous.
The appeal was timely filed, and is properly before
the Board, from the rating action of the office at St.
Petersburg, Flu., which severed service connection for
thrombophlebitis of the left leg and continued the
denial of service connection for varicose veins of the
abdomen. It is contended that the disability of the
left leg and the varicosities were aggravated during
service.
THE EVIDENCE
(The veteran) served from July 1942 to April 1943.
An appendectomy scar and varicose veins of the lower
abdomen were noted at induction. He was hospitalized
in March 1943 for observation as a result of an examina-
tion for oversea duty. I t was reported for clinical
purposes that a few days following an appendectomy,
6 years prior to service, the veteran developed pain in
the left leg which was associated with chills and caused
him to remain in bed for 1 month; .when he became
ambulatory the left leg became swollen and then some-
time later he noticed marked enlargement of the veins
of the lower abdomen; his civilian physicians had
advised him to avoid all possible trauma to the abdom-
inal area; he had had no symptoms in service and had
carried out all his assignments except commando
training, which he avoided through fear of trauma.
On examination there was slight pitting edema of the
left leg, without varicosities, and largo varicosities of
the lower abdomen. Because of possibility of injurj-
to the exposed area, ho was discharged on a certificate
of disability on account of thrombophlebitis with some
obliteration of the left femoral vein, held by the Bervice
department to have existed prior to service and not to
have been aggravated therebj\
A claim for compensation was submitted in February
1945 and reference was mado to phlebitis and varicose
veins prior to service, When examined in April 1945,
the veteran stated ho had phlebitis, from which he
never completely recovered, prior to service. On ex-
amination the left leg was slightly enlarged and mild
residuals of thrombophlebitis of the left leg was diag-
nosed. The varicose veins of the abdomen were
described as being nonsymptomatic and moderate in
STATEMENT OF FACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOABD OF VETERANS' APPEALS
mitted with veteran's claim was a letter from his
personal physician who stated that the veteran had had
an appendectomy performed prior to service which was
complicated by phlebitis of the lower extremity (service
medical records already in file having been received
May 31,1943).
March 9, 1945: Outpatient examination ordered.
April 27, 1945: Report of examination received.
May 3, 1945: Service connection by way of aggrava-
tion granted for thrombophlebitis left leg considered 10
percent disabling from date of claim.
November 8, 1946: Claim reconsidered on basis of
VA examination of October 21, 1946, and decision of
May 3, 1945, confirmed and continued.
September 28, 1959: Claim reconsidered under DA
letter, December 14, 1954, reviewed. Service depart-
ment requested to submit all available treatment
records.
October 28, 1959: Duplicate service medical records
received.
November 20, 1959: Claim reconsidered under DA
letter review and proposal to sever service connection
for thrombophlebitis, left leg, under VAR 1105(D)
prepared on the basis that the condition existed for a
number of years prior to service and was diagnosed by
his personal physician as having been a part of and a
residual of an appendectomy perlormed before military
service.
July 5 ; 1960: Letter from Director, Compensation
and Pension Service, concurring in the proposal to sever
service connection for thrombophlebitis, left leg.
July 11, 1960: Letter to veteran advising him of the
proposal to sever service connection for thrombo-
phlebitis, left leg, affording him the opportunity of
submitting evidence in rebuttal to this proposal.
August 22, 1960: Veteran filed an appeal in rebuttal
to letter of July 11, 1960 stating that he would submit
additional evidence to support his claim that the
thrombophlebitis of the left leg was aggravated by his
military service.
September 28, 1960: Action taken under VAR
1105(A) to sever service connection for thrombo-
phlebitis, left leg, inasmuch as the veteran did not
submit any additional evidence to substantiate his
appeal.
September 30, 1960: Veteran notified of the action
severing service connection and advising him that his
appeal would be certified to the Board of Veterans
Appeals after a 30-day period unless he notified the
Veterans' Administration to the contrary.
January 4, 1961: VA form 1-646 received from veter-
an's service representative who set forth his contention
DECISION. CONTAINING FINDINGS OF FACT AND CONCLUSIONS OP FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BV LAW
LAW. OF THE BOARD OF VETERANS' APPEALS STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
size. Another postservice examination report is of
record.
George Seiken, M.D., performed an appendectomy
prior to service, which was complicated by phlebitis of
a lower extremity and incapacity for a period of time.
Service connection, by aggravation, was granted for
thrombophlebitis of the left leg, but on later review
such action was held to bo clearly and unmistakably in
error and service connection was discontinued. Service
connection has been denied for varicose veins of the
abdomen.
LAWS AND REGULATIONS
Service connection is warranted for disability in-
curred or aggravated in line of duty during active
service- (38 U.S.C. sec. 310).
Volume 38, Code of Federal Regulations, section
3.105 provides that service connection, once granted,
may not be severed except on a basis of clear and un-
mistakable error.
DISCUSSION AND EVALUATION
Varicose veins of the abdomen were noted ftt induc-
tion and no symptoms thereof were reported during
service other than a description as to their size. The
notation at induction, the recorded clinical data during
and after service, tho statement of Dr. Seiken and other
evidence of record clearly and unmistakably establish
the existence of thrombophlebitis of the left leg prior
to service. Other than slight swelling of tho leg no
symptom was reported during service. The disability
did not interfere with the veteran's performance of
military duties and was discovered on routine examina-
tion for oversea shipment. I t is also noted the veteran
was discharged from service because of possible trauma
to the abdominal area which would have aggravated
the preexisting disability.
FINDINGS OF FACT FINDINGS OF FACT
(1) Thrombophlebitis of the left leg clearly and un- After consideration of all tho evidence of record, -I
mistakably existed prior to service. hereby make the following findings of fact;
(2) There clearly and unmistakably was no increase The veteran was inducted for military service on
in severity or aggravation of the thrombophlebitis July 6,1942. I t was noted in his induction examination
during service. on the last-men tioned date that the veteran had varicose
(3) Severance of service connection, by aggravation, veins on the lower part of his abdomen and t h a t he had
for thrombophlebitis was not based on a difference of a scar from an appendectomy. The veteran was not
opinion. examined again until he was assigned for oversea duty.
(4) Abdominal varicosities existed prior to service. Following this examination, he was sent to a hospital,
(5) There was no increase of severity or aggravation where on March 19, 1943, an examination revealed that
he was suffering from chronic thrombophlebitis in bis
of the abdominal varicosities during service.
STATEMENT OF PACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE DOABD OF VETERANS' APPEALS
as to why service connection should be restored on the
basis t h a t the thrombophlebitis was not shown on
entrance into service, ana in his opinion the condition
was aggravated by service. He further contends that
the action taken to sever service connection was in
error since service connection was granted by way of
aggravation which was the opinion of a prior rating
board and therefore the case should have been submitted
to central office under VAR 1105(B) rather than
VAR 1105(D).
DECISION OF REGIONAL OFFICE AFTER REVIEW OF APPEAL
AND EVIDENCE
1. The evidence or record docs not susbstantiate
the veteran's claim that service connection by way of
aggravation of thrombophlebitis, left leg should be
restored.
COMMENT ON STATEMENT FOR APPELLATE R E V I E W
ISSUE
1. No comment.
MILITARY MEDICAL RECORDS
1. No comment.
VETERANS' ADMINISTRATION MEDICAL RECORDS
1. No comment.
ADJUDICATION ACTION
1. No comment. See attached copy of VA Form
1-646.
DECISION OF REGIONAL OFFICE
1. No comment.
STATEMENT OF ACCREDITED REPRESENTATIVE IN
APPEALED C A S E
QUESTION AT ISSUE
Restoration of service connection for varicosities of
the abdomen and lower legs.
I t is noted that service connection for this veteran
was severed on the basis of the Board's belief that the
condition preexisted service and that no increase in
severity was shown in service.
Upon reviewing the file and upon reviewing the in-
duction examination, it is noted that the veteran was
FINDINGS OF FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS PROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN
left leg, with partial obstruction, and from sovero vari-
cosities of the lower abdominal veins. Because of this
condition, the veteran was discharged from military
service on April 27, 1943. During the discharge pro-
ceedings the veteran stated that no had developed a
thrombophlebitis condition following an appendectomy
prior to service On the basis of this ovidenco, a mili-
tary service department concluded that the thrombo-
phlebitis condition and varicosities had existed prior to
service, and therefore, weio not aggravated by military
service.
After his discharge tho veteran filed a claim with the
Veterans' Administration for servico connection of his
condition on the grounds of aggravation during military
service. The veteran submitted with his claim a
statement of his private physician, in which it was said
that the voteron had had an appendectomy prior to
service, and that' tho operation was complicated by
phlebitis of tho lower extremity. On April 24, 1945,
an examination by tho Veterans' Administration re-
vealed thrombophlebitis of tho left leg and varicosed
veins in his abdomen. On the last-mentioned date the
veteran stated that the veins in his abdominal wall had
become much larger after his induction. On the basis
of this evidence, tho regional ofiico granted service con-
nection for thrombophlebitis on the basis of aggrava-
tion of that condition during military servico; tho
the disability rating given was 10 percent.
The veteran was examined again on October 21,
1946, at a Veterans' Administration hospitul. Ho com-
plained of swelling in his left leg after standing or walk-
ing for 1 to 2 hours. Enlargement duo to hyperplasia
in the subcutaneous tissues in his left leg were found as
a result of tho tlirombophlebitis. Otherwise, the find-
ings in this examination were tho same as previously
noted on April 24, 1945.
Tho regional office in November 1959 proposed sev-
erance of servico connection for the veteran's condition,
pursuant to VAR 1105(D). I t wos determined in the
proposal that the thrombophlebitis condition existed
prior to service and had been diagnosed by tho veteran's
physician as having been a part of and a residual of an
appendectomy performed prior to servico. The central
office concurred in this proposal and tho veteran was
informed of tho proposed action. When tho veteran
submitted no additional ovidenco to show aggravation,
tho regional office, pursuant to VAR 1105(A), soverod
servico connection lor the veteran's thrombophlebitis
on September 30, 1960.
On January 4, 1961, the veteran brought this appeal
from tho decision of tho regional office.
STATEMENT OF PACTS PREPARED BY THE REGIONAL OFFICE AND
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS
noted to have varicosities of the abdomen at the time
of entry into service but was not considered disabling
at that time.
There are no varicosities noted on the legs at the time
of the induction examination nor were there any re-
marks as to whether or not there were any existing
symptoms of varicosities either in the abdomen or the
The proposed rating under 1105(D) indicates that
the first findings of varicosities were found at the time
the veteran was being examined for oversea service.
However, it is noted that this veteran must have surely
gone through the usual recruit training as well as the
other rigors of entry into service, therefore, it is be-
lieved that there very well could have been an aggrava-
tion of the varicosities even though existing prior to
service Therefore, it is our contention that the veteran
was certainly a good risk upon entry into service with
the notation t h a t he had no disabling symptoms nor
disabling varicosities at the time he entered service.
I t is our further contention that the existence of the
varicosities, whether in the abdomen or on the legs, a t
the time of examination for oversea duty certainly indi-
cated that these conditions, after some 9 months' serv-
ice, could certainly have been brought on by service.
Further, may we note that the original service con-
nection was granted by way of aggravation which is
strictly a matter of opinion and, therefore, it must be
held that in order to sever the service connection on
this case the severance must be based on opinion and
not on a clear and unmistakable error.
I t is respectfully requested that this case be con-
sidered further on the evidence of record and on the
remarks above.
FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BY LAW
STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
' OPINION
The principal issues for decision in this case are:
(1) Whether the regional office used the proper regula-
tion for these proceedings; (2) whether the evidence
establishes that service connection for the veteran's prc-
service tliroin bo phlebitis on the basis of aggravation is
clearly and unmistakably erroneous. The issues will be
discussed separately.
(1) Regulations: The applicable Veterans' Adminis-
tration regulation, initially applied by the regional
office, to determine whether service connection of the
veteran's disability should be severed, is VAR 1105(d)
quoted in the margin. 1 However, when the veteran
failed to submit additional evidence, the regional office
took action under VAR 1105(A). 1 The veteran con-
tends that since a difference of opinion is involved in all
questions of aggravation, and since the opinion of the
rating board differed from the opinion of the board
which originally granted the veteran service connection,
the proper regulation, which should have been applied,
is VAR 1105(B). .
As I interpret tltcsc regulations, VAR 1105(D) is the
proper section for severance of service connection, pre-
viously granted. T h a t section specifically states the
requirements which must be met before service connec-
tion may be severed. VAR 1105(A) is applicable to
issues which have been previously determined in a
decision which is now final; although this section states
t h a t it is applicable to service connection, this is to be
interpreted as meaning issues of service connection,
other than severance, which is clearly provided for in
VAR 1105(D). However, the fact t h a t the regional
office took final action under VAR 1105(A) was not
prejudicial to the veteran. These proceedings were
instituted under VAR 1105(D) and the veteran, as
provided in that section, was given the opportunity to
submit additional evidence. Also, under both VAR
1105(D) and VAR 1105(A), clear and unmistakable
error must be shown in order to sever service connection
of the veteran's disability.
I hold, therefore, that the proper regulation to be
applied in this case, is VAR 1105(D), and that although
'VAR 1105(D). Severance of tenict connection.—Service connection will besovered
only where evidence establishes that It is clearly and unmistakably erroneous (the
burden of proof being upon too Government). A chanre In diagnosis may bo oc-
cupied as n basis tor severance action It the * * * proper medical authority certifies
that, In light of all accumulated evidence, the diagnosis on which service connection
« u predicated is clearly erroneous • * *. When severance of service connection Is
considered warranted, a rating proposing ssverance »11) be prepared setting forth all
material facts and masons and submitted to the central office for review without
notice to claimant or representative * * *.
' VAR HOJ(A). Error.—Previous determinations on which an action was predi-
cated, Including decisions of service connection • • • will be accepted as correct In
the absence of clear ond unmistakable error. Where evidence establishes such error,
the prior decision will bereversedor amended • • •.
STATEMENT OF PACTS PBEPAUED BY T U B REGIONAL FINDINGS OP PACT AND CONCLUSIONS OP LAW PREPARED BY LAW
TRANSMITTED TO THE BOARD OP VETERANS' A STUDENTS FROM THE STATEMENT OP PACTS WHICH APPEARS
IN THE FIRST COLUMN

action was taken under VAR 1105(A), no prejudice to

the veteran resulted. In view of the foregoing, it is
unnecessary to discuss tho veteran's contention concern-
ing VAR 1105(B).
(2) Severance: The induction examination of the
veteran revealed that he was suffering from varicose
veins in the lower abdomen, and the veteran admitted
that ho contracted a thrombophlebitis condition prior
to entering service. Thus, the presumption of sound
condition, provided for in title 38, United States Code,
section 311, is inapplicable to this case. Also, there is O
r_i
no evidence that the regional office obtained a certifi- Q
cation of a change in diagnosis of tho veteran's physical j"*
condition as grounds for severance. Thus, tho issue £
for determination is whether, pursuant to VAR 1105(D),
the evidence of record establishes that service connec- *_.
tion for thrombophlebitis upon the basis of aggrava-
tion • of a preservico condition is clearly and unmis- H
takably erroneous. M
The regional office determined that service connection fed
for the veteran's disability on the basis of aggravation ;d
was clearly and unmistakably erroneous because tho
veteran admitted that ho contracted thrombophlebitis Q
several years prior to his induction, as evidenced by tho ^
testimony of his private physician. Tho veteran, on
the other hand, contends that since thrombophlebitis <;
was not noted in his induction examination, and that ft
since ho went through tho usual rigors of military h^
training, his preservice thrombophlebitis was aggra- ft
vated (luring military service. Ho also points to tho £rj
fact that any varicosities which ho bad upon tho timo i>
of induction were not considered disabling, whereas, Zj
after 9 montlis of servico, he was suffering from a disa- CO
bility for which he was discharged. I turn, therefore,
to u consideration of the evidence of aggravation. Q
In defining aggravation, title 38, United States Codo, f1
section 353 provides— |>
A preexisting injury or disease will be considered t o have been ^
aggravated by active military * • » servico, whero there is an &i
increase in dirability during flitch service, unless thcro is a specific CO
finding t h a t tho Increase in disability is duo to the natural
progress of the disease.
The evidence clearly establishes that there was an
increase in disability during tho veteran's military
service. In his induction examination the veteran was
diagnosed as having only varicosities of tho lower
abdomen, which apparently were not disabling. Then,
9 months later, a condition of phlebitis of the left log ^T
was diagnosed, for which tho veteran was discharged. "^
1
For compensation on tbobaili of ottroviillon, w » W U.S.G.310. I£j\
STATEMENT OF PACTS PREPARED BV THE REGIONAL OFFICE AND DECISION, CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF
TRANSMITTED TO THE BOARD OF VETERANS' APPEALS LAW, OF THE BOARD OF VETERANS" APPEALS
CONCLUSIONS OF LAW
(1) Service connection for thrombophlebitis of the
left leg was clearly and unmistakably erroneous, within
the meaning of 38 C.F.R. 3.105, and may not be re-
stored.
(2) Service connection for varicose veins of the
abdomen is not warranted under the provisions of 38
U.S.C. 310.
FINDINGS OP FACT AND CONCLUSIONS OF LAW PREPARED BV LAW
STUDENTS FROM THE STATEMENT OF FACTS WHICH APPEARS
IN THE FIRST COLUMN
Whether this change in the veteran's condition was
duo to aggravation of his preservico phlebitis condition
during military service or to natural causes is not the
determinative issue in this case. The question is
whether the evidence of record establishes that service
connection of this condition on tho basis of aggravation
is clearly and unmistakably erroneous. There is sub-
stantial evidence upon which a finding of aggravation of
the prcscrvice condition during military service could
reasonably be made. The veteran's condition in-
creased in 9 months from a nondisabling varicosis to a
disabling condition of chronic thrombophlebitis. Dur-
ing this period the veteran apparently went through
basic training, and it is well established that prolonged >
standing ana heavy work will aggravate conditions of
varicose veins and phlebitis. 4 In this respect, it was
noted in an examination on October 21, 194G, that the
veteran complained from swelling in his legs as a result H
of standing for a few hours. <
Evidence on tho other hand establishes that the
veteran contracted phlebitis after an appendectomy s
performed prior to his entering service. The veteran
also stated at tho time of his discharge that he had o
previously, before his induction, suffered from thrombo-
phlebitis.
In view of the conflicting ovidence of tho cause of tho <
increase in tho veteran's thrombophlebitis between the a
time of induction and 9 months thereafter, 1 cannot
agree with tho regional office that tho evidence estab- H
lishes clear and unmistakable error in continuing service w
connection of the veteran's disability on the oasis of >
aggravation during military service. 1 consider sig-
nificant the fact that no condition of phlebitis wus diag- CO
nosed in the veteran's examination and tho probability
that physical training during military Bcrvice aggra- o
vated the veteran's condition. I conclude that the
regional office was in error in determining under VAR
1105(D) that service connection was clearly and un-
mistakably erroneous on a basis of aggravation. Tho
evidence as a whole does not support such an ultimate
finding.
CONCLUSIONS OF LAW
After consideration of all tho evidence of record, and
in view of tho foregoing, I make tho following con-
clusions of law:
(!) That tho applicable regulation to determine
whether service connection of tho veteran's disability
should be severed is VAR 1105(D), and that tho
• See 3 Gray, "Attorney) Textbook of Modletno," sacs. 73.01 and IB7.W (3d odiuoo
STATEMENT OF PACTS PREPABBD BY THE REGIONAL OPPICB AND DECISION. CONTAINING FINDINGS OP FACT AND CONCLUSIONS OF FINDINGS OP FACT AND CONCLUSIONS O p LAW PREPARED BY LAW
TRANSMITTED TO THE BOABP OP VETERANS* APPEALS LAW. OF THE BOARD OF VETERANS' APPEALS STUDENTS FROM T B B STATEMENT OP FACTS WHICH APPEARS
IN THE FIRST COLUMN

veteran suffered no prejudice as a result of the regional

office's taking action under VAK 1105(A).
The appeal is denied. (2) That tho veteran mis discharged under conditions
other than dishonorable, and that tho veteran at tho
time of his induction was suffering from varicosities,
phlebitis, and thrombophlebitis.
(3) T h a t there was an increase in tho vctcran'B condi-
tion of thrombophlebitis during military service, and
that there was substantial ovidenco upon which tho
agency, which first considered the veteran's service con- a
nection claim, could reasonably make a finding of
aggravation during military service of tho veteran's a
preservice condition. >
(4) T h a t in light of tho conflicting ovidenco, the f
Government has not sustained its burden in proving
that service connection of tho veteran's disability is W
clearly and unmistakably erroneous. H
(5) That, therefore, tho regional office erroneously <
severed service connection for tho veteran's thrombo-
phlebitis. 10 pcrcont disabling, and that service connec-
tion of t h a t condition should be reinstated.
o
 ADDITIONAL OPINIONS OF LAW STUDENTS ON THE SAME CASE
C A S E No. 1
ISSUE
Restoration of service connection for otosclerosis and consequent
anxiety reaction.
FINDINGS OP FACT
(1) Claimant's induction examination showed that his hearing was
defective—hearing in right ear 5/20 and left 10/20 and he was accord-
ingly placed on limited duty. On January 13, 1943, his hearing was
measured at 5/20 and 6/20. On August 27, 1943, he was separated
because he did not meet the minimal standards for induction and his
hearing, at this time, had decreased to 1/20 for both his right and
left ears.
(2) The veteran filed for compensation on the basis of aggravation
of the condition of the cars and on July 4, 1944, he was granted a
wartime service connection of 50 percent for chronic otosclerosis and
0 percent for anxiety reaction stemming from the former. His hearing
at this time was measured at 0 feet for the right, 2 feet for the left.
(3) Oh January 25, 1950, the Central Disaoility Board corrected
the type of service connection for bilateral ear disability from service
incurrence to aggravation by service on the basis of the decrease in
hearing suffered between induction and separation from service.
(4) On July 30, 1958, under a nationally authorized review, it was
proposed that the grant of service connection for deafness was clearly
and unmistakably erroneous and there/ore should be severed. This
was based on the finding that the service records showed right hearing
5/20 and left 10/20 and that there had been no intervening injury or
disease and no treatment in the service.
(5) On M a y 29, 1959, the Director of Compensation and Pension,
Washington, D.C., administratively reviewed the case and concurred
in the severance of service connection for otosclerosis together with the
anxiety reaction. This decision was, in part, purportedly based on
securing additional service records showing treatment on January 13,
1043, where hearing was noted as 5/20 in the left car and 6/20 in the
right. It was noted in the VA record that the proposal to sever was
based on the fact that there was no change in his ear condition.
However, the Board finds that, while the right ear remained the same,
the hearing in the left decreased from 10/20 on August 7, 1942, to
6/20 as of tho January 13, 1943, examination.
(6) On September 16, 1959, severance was effected on tho ground
that tho grant of such service connection had been clearly and un-
mistakably erroneous. On September 21, 19G0, the veteran filed an
appeal with the regional office which held that the evidence of record
did not warrant restoration of tho service connection. From this
ruling, the veteran appeals to this Board.
CONCLUSIONS OF LAW
(1) The claimant is a veteran who served in the active military
service during a period of war and therefore becomes entitled to
wartime disability compensation under title 38, United States Code,
chapter 17, section 310, if his disability cither was incurred in tho lino
of duty or resulted from aggravation of a preexisting condition occur-
ring in the line of duty.
(2) The fact of defective hearing was noted in tho induction report.
It is clear from the medical evidence that his condition worsened and
became moro severe during his service stint from hearing measured at
5/20 and 10/20 upon induction to 1/20 for both ears at the time of his
separation. The sole question presented on appeal, therefore, is
whether the evidence is so clear and unmistakable, as required under
section 311 and 353, that the preexisting condition, which worsened
during his period of service, was not aggravated by such service that
the service connection should have been severed.
(3) Tho Board concludes that this quantum of proof was not met.
Tho first proposal for severance of the service connection was predi-
cated on the fact that the records did not disclose an intervening injury
or disease or treatment in service. Tho utilization of these grounds
for severance is erroneous inasmuch as it violates the presumption of
sections 311 and 353 by placing the burden of proof on the veteran
to produce evidence showing what service-connected factors caused
the worsening or aggravation of his preexisting condition. Also, the
second proposal of soveranco was based on the January 13, 1943,
examination which the regional office stated showed no change in tho
veteran's hearing. As noted above, this examination did show a loss
of hearing from his condition at tho time of induction and furthermore
the significant dates for comparison are induction and separation.
T h e medical evidence is clear and unmistakablo that the veteran's
hearing drastically degenerated during that period.
JUDGMENT
In accordance with tho foregoing findings of fact and conclusions
of law, it is ordered, adjudged, and decreed that the vetcrun's dis-
ability rating for otosclerosis and the anxiety reaction, directly duo
and secondary to tho otosclerosis, be restored.
C A S E No. l
This is a proceeding instituted to reverse a final decision, severing
service connection of an ear disease, diagnosed as otosclerosis, 50
percent disabling, and of chronic anxiety, contracted as the result of
the car condition. The issue for decision is whether service connec-
tion of the veteran's preservice ear disease should be restored because
the evidence establishes that severance of service connection was
clearly and unmistakably an error.
FINDINGS OF FACT
Upon consideration of all the evidence in the record, I hereby make
the following findings of fact:
The veteran was inducted for military service on August 7, 1942.
I t was noted at the time of his induction examination t n a t tho vet-
eran's hearing did not meet the minimum requirements; tho veteran's
hearing was given a rating of 5/20 in his right ear and 10/20 in his
left ear. T h e veteran was then placed upon limited duty. His cars
were examined again in January 1943 and a rating was given of 5/20
in the right ear and 6/20 in the left. However, the veteran was
never treated for his ear disease while he was in military service.
Disability discharge proceedings were commenced, and on August 27,
1043, the veteran was discharged because ho did not meet the mini-
mum hearing requirements. In his separation examination each ear
waB given a rating of 1/20; the veteran a t this time stated that his
deafness existed prior to his induction. Ho was at no time engaged
in combat with the enemy.
In October 1943 ho filed a claim for wartime disability compensa-
tion on the ground that bis preservice ear disease had been aggravated
while he was in military service. On the basis of a Veterans' Adminis-
tration examination, diagnosing the veteran's ear disease as chronic
otosclerosis, which is defined us a burdening of the ear tissues, the
scrvico connection claim was granted on July 4, 1944, as having been
incurred while on active duty; this rating, however, was corrected in
Jnnuarv 1950 and the veteran's service connection was placed upon a
basis of aggravation by military service.
Tho veteran's ear condition has grown steadily worse since he was
discharged from mihtury eervice. In May 1947 the veteran's right
ear was given a rating of 0/20 and his left car a rating of 1/20. In
April 1948 an examination revealed that the veteran bad contracted
bilateral deafness with a rating of 0/20 in both ears. However, since
the veteran's hearing was correctable with a hearing aid, the disability
evaluation was reduced from 50 percent to 40 percent. Additional
service connection was granted in January 1950 for n chronic anxiety
condition, which the veteran developed from worn- and tension
because of loss of his hearing. By 1953 the veteran was suffering
from almost total deafness, and in 1954 bis disability was increased to
50 percent from 40 percent. I t was also noted in the- ratings that the
degree of disability a t the time of induction was 10 percent.
In July 1958 the regional oflice proposed to sever service connection
of the veteran's deafness on grounds that service connection was
clearly and unmistakably erroneous. The regional office found that
while he was in the military service, there had been no intervening
injury* or disease and that tho veteran had never been treated during
activo duty for otosclerosis. The central office concurred in tho
proposal to sever service connection of the ear diseaso and the resulting
anxiety.
The regional office on September 16, 1959, pursuant to VAR
1105(D) severed service connection of the veteran's ear diseaso and
chronic anxiety. The veteran did not bring this appeal until Septem-
ber 21, 1960.
OPINION
Tire decision of the regional office, severing service connection of
the veteran's ear condition and chronic anxiety, became final on
September 10, I960.1 The veteran did not appeal that decision
within the statutory period of 1 year, having filed his appeal on
• V A R IHM. FIMAMTV o r DECISIONS.—
(A) The decision of i duly constituted rating afcncy or other nsency of original Jurisdiction will be anal
and binding upon all field offices of the VA ami will not be sub|ect to revision except by duly constituted
appellate authorlttci or e w o i t M provided In VA Regulation 110S • • *.
(C) A dertiion of an ore^ryoforiTinal Jurisdiction which is not annulled within 1 year from the date of
notice of the •lL^illowenM will be final. Where an appeal t» timely filed, the disallowance, If affirmed does
not become flml until the date of the appellate decision. (33 U.S.C. 4001(a) and 4001(b)).
September 21, 1960, and ho has produced no now and material evi-
dence to entitlo him to a roviow under authority of 38 U.S.C. 4005(d)
and 38 U.S.C. 3004, quoted in tho margin.' Therefore, tho only
jurisdiction which an appellate tribunal has to roverso a final decision,
where there is no new and material ovidenco, is upon the basis that
tiio decision was clearly and unmistakably in error. 1 And since tho
veteran is seeking to roverso a decision which has now bocomo final,
I hold that the burden of proof in showing such error is upon tho
veUran. 4 Tho issue for decision then is whether tho regional office was
clearly and unmistakably in error in its decision to sever servico
connection of the veteran's preservice ear disease.
The evidence clearly establishes, as it was noted in the veteran's
induction examination, that tho car disease existed prior to induction.
Thus, tho veteran's initial claim for servico connection was granted
upon the basis that the ear condition was aggravated while tho
veteran was in military service 8 Having reconsidered the initial
grant of service connection and having found that there- was no
intervening injury or diseaso while tho veteran was on activo duty,
the regional office determined that there hud been no aggravation of
the ear disease during tho veteran's tour of duty. Thus, tho veteran,
in order to show that tho regional office was clearly and unmistakably
erroneous in its determination, must produce convincing evidence
that his ear disease was aggravated during his military servico.
In defining aggravation, 38 U.S.C. 353 provides:
A preexisting injury or disc&se will bo considered to have been aggravated by
active military * * * service, where there is an increase in disability during
such service, unless there fa a specific finding that tho increase in disability ia
duo to the natural progress of tho disease.
The evidence establishes that there was an increase in the veteran's
ear disease whilo ho was in military servico. His induction examina-
tion rovenls that his hearing was 5/20 in tho right car and 10/20 in
the left ear; his separation examination on August 25, 1943, shows
that hearing in both ears was rated at 1/20. Also, tho veteran's
disability rating upon induction was 10 percent, and a 50-percont
disability rating was granted in tho initial servico connection claim.
I t was upon the basis of this evidence that tho original service con-
nection claim was granted in July 1944, as corrected in January 1950.
Notwithstanding the increase in disability, tho agency which sovercd
> 38 D.S.C. 4003. Application* for mine en appeal.—
(b) If no application tor review on nopeal is filed In accordance with t h h chapter within the 1-year period,
tbe action taken on Initial review or determination ehall heroine final and the claim will not thereafter be
reopened or allowed, except that where tubsoqucnt to roch disallowance now and material evidence in the
form of official reports from the proper service department U Kcurcd the Administrator may au thorite tho
reopening of tho claim and review of tbe forma- decision * * *.
SS U.S.C. SOW. flfaaltowrf clefou.—
(a) Where a claim has been finally disallowed, a later claim on the came factual bads, u* supported b y new
and material ovldence, shall have the attributes of a now claim ' * *.
• V A R 1105. REVISION o r DECISIONS ' * '
(A) &roT.—Previous determlnaUoiu on which an action was p r e d a t e d . Including nectslona of service
connection, dcrree of disability, mo * * * and other Issues, will be aocgited as correct In (he absence ol
clear and unml'&ikahla error, where evidence e n a b l l s h n tuch error, the prior decision will be reverted
or amended. The ratlni or other nd indicative decision which constitutes orovercal o l a prior decision on the
groundj of clear and unmistakable error has the tame effect oa If the corrected decision had been made on tho
date of tbe reversed decision.
•Since VAR lioStoems to place tho burden of proof upon the OoTcmmcnt, when It cecki to revise a de-
cision « blch has become final, I hold that by analogy, the burden thou! a bo upon the veteran, who ti seeking
a reversal of a final decision.
• SS U.S.C. 310. link rctiflnatcf.—For disability rcsilting from personal Intury cuffcred or dLxaso
contracted In line of d u t y , or for aggravation of a preexisting injury cuffcred or disease contracted In line
of d u t y , In the active military ' * * cervlce, d u r t n i a period of war, tbe United Btatea will pay to any
veteran thus disabled s o d who was discharged or released under conditions other than dishonorable from
the period of service in which said injury or disease was Incurred, or preexisting Injury or disease wai eg*
grovatod, compensation as provided In this subchapter * * ' .
service connection found that the grant of service connection was
clearly and unmistakably erroneous. Since the decision, severing
service connection is not in the record, it does not appear whether
the agency made tho specific finding that the increase was due to the
natural progress of the disease, which is required by 38 U.S.C. 353,
quoted above, where an increase in disability during military service
is found. Although failure to make such finding might be reversible
error, which I do not decide, there is no evidence that such finding
was not made, and tho burden to produce such evidence is upon the
veteran. However, as will appear hereafter, the evidence of record
would sustain a finding that tho increase in disability during service
was due to the natural progress of the veteran's ear disease.
As the regional office concluded, there is no other evidence in the
record to establish aggravation during service. The evidence only
establishes that tho veteran had otosclerosis when he was inducted.,
and that although it grew worse during military service, the disease
has become more severe since his discharge. The rating presently
given to both ears is 0/20 or almost complete deafness. There is no
evidence of any intervening injury or disease during service which
Alight aggravate the veteran's ear condition. Since the veteran's
ear disease existed prior to service and has steadily become worse
after his discharge, with no evidence of intervening causes, there is
substantial evidence upon which the agency might have made the
required finding that the increase in disability during service was due
to the natural progress of the disease
On the basis of all the evidence of record, I cannot conclude that the
regional office was clearly and unmistakably erroneous in its deter-
mination to sever service connection of tho veteran's ear disease and
of the chronic anxiety, proximately resulting from the disease.
CONCLUSIONS OP LAW
In view of the foregoing and of all the evidence of record, I make
the following conclusions of law:
(1) T h a t the veteran was discharged under conditions other than
dishonorable.
(2) T h a t the decision of tho regional office had become final when
the veteran appealed the decision, and that the veteran submitted
no new and material evidence, which would entitle his claim to be
treated as having the attributes of a new claim, under 38 U.S.C. 3004.
(3) That I have jurisdiction to review a final decision of a regional
office, even where there is no new and material evidence, to determine
whether the regional office committed a clear and unmistakable
error in its decision to sever service connection, and that tho veteran
has the burden of proving such error.
(4) That there was an increase in the veteran's disability during
activo military service, but that such increase in disability is not
sufficient to snow t h a t the decision severing servico connection was
clearly and unmistakably erroneous.
(5) T h a t the veteran has adduced no other evidenco to prove that
his preservico disability was aggravated whilo on activo duty.
(6) That the veteran has faded to show clear and unmistakable
error in the decision of tho regional office, and that the appeal should
be dismissed.
CASE N O . 2
J.BSUE
Restoration of service-connection for otitis media, chronic, bilateral,
and defective hearing.
FINDINGS OP FACT
(1) The induction examination noted perforated eardrums but did
riot note an otitis media condition with defective hearing.
(2) Military medical records of 1944 showed that the perforations
of both eardrums had been healed and gave a clinical history of dis-
charging ears in childhood until 6 years before service, b u t that the
condition had been quiescent in the interim. Examination of June 4,
1944, showed his hearing to bo normal but also showed tympanic
membranes, atrophic, bilateral, and congenital.
3. On October 13, 1944, his separation examination showed that
both eardrums were scarred but no drainage or perforation. His
hearings was normal—15/15 bilateral. However, he was discharged
as being below minimum standards for induction.
(4) In December of 1944 tho veteran filed for compensation, alleging
deafness in both ears. In May 1945 he was given a compensation
examination, his condition being described the same as in lus separa-
tion physical. Tho diagnosis was chronic nonsuppurative otitis
media, bilateral.
(5) On June 30, 1945, he was granted a service connection with a
rating of 0 percent for this condition. On March 16, 1951, VA showed
that nis hearing had decreased to 5/20 in both ears. This was the
first evidence from military or VA medical records of defective hearing.
As a result of examination and treatment in January 1951, a private
physician gave an opinion t h a t the otitis media was experienced in
childhood but that tho defective hearing was duo to exposure to Joud
noises and blasts incurred while in military service.
(6) Letters were received in April 1951 from two servico comrades
testifying that the veteran complained of headaches, ears aching and
ringing and hardness of hearing shortly after coming back from an
infiltration course where a mine exploded near him. On July 23, 1959,
a letter was received from veteran's friends testifying that he had no
trouble prior to servico but constantly suffered from his ears since
his discharge.
(7) In April 1951 Ins rating was increased to 30 percent.
(8) On September 3, 1959, service connection for otitis media and
defective hearing was terminated on the basis of clear and unmistakable
error.
(9) A formal appeal followed and the regional office confirmed
the severance on these terms:
Tho evidence does not warrant restoration of service connection for otitis media,
chronic, bilateral, with defective hearing, there being no evidence to support a
reversal of the decision severing service connection. [Emphasis added.]
CONCLUSIONS OF LAW
1. T h e c l a i m a n t is a v e t e r a n of a c t i v e , w a r t i m e s e r v i c e w i t h a n
honorable discharge and, therefore, becomes entitled under 38 U.S.C.
17 ( § 3 1 0 ) t o c o m p e n s a t i o n for d i s a b i l i t y r e s u l t i n g f r o m s e r v i c e -
incurred injury or disease or aggravation of a preexisting disease or
injury.
2. Because the condition was not noted at induction, to uphold the
decision to sever service connection, the regional office would have to
find that the local office was warranted in finding that the evidence
was clear and unmistakable, that the condition existed beforehand
and furthermore, that, if the condition became more severe, the
evidence was clear and unmistakable that it was not aggravated by
service. This is the test stipulated by sections 311 and 353.
(3) In the instant case, there is evidence on both sides of the ques-
tion. However, the terms in which the regional office clothed its
decision clearly show that the sections 311 and 353 presumption was
not operative in its determination. This body based its determination
on the decision that there was no evidence to support a reversal of
the decision severing tho service connection. Its inquiry should have
been directed to tho question of whether the decision of the local office
should have been sustained, which required it to determine whether
or not the evidence was clear and unmistakable that the veteran's
condition was not connected with his service and should have been
severed in the first place. This is more than a problem in semantics
and amounts to substantial error involving the allocation of both the
burden and the quantum of proof with the result that tho veteran
was not given the benefit of the presumption that he was entitled to
under tho above sections.
JUDGMENT
I t is ordered that the ruling of the regional office be reversed and
the cause remanded for action not inconsistent with this opinion.
CASE N O . 2
This is a proceeding instituted to roverso a final decision, severing
service connection of an ear disease, diagnosed as otitis media, 30-
percent disabling. The issue for decision is whether service connec-
tion of tho veteran's proservico ear disease should be restored because
severance of the service connection was clearly and unmistakably on
error.
FINDINGS OP FACT
Upon consideration of all the evidence in the record, I hereby make
the following findings of fact:
The veteran was inducted on February 21, 1944. His induction
examination revealed healed perforations of both eardrums. The
veteran was not placed upon limited duty and was not reclassified on
account of his ear condition. In June 1944 he was treated for aching
and ringing in his ears; he also complained of an inability to tolerate
loud noises. An examination of his ears Bhowed that tho tympanic
membranes wero atrophic, but that hia hearing was normal. Tho
veteran stated at this time that he had had discharges from his ears as
a child and had had no ear trouble for the 6 years previous to his
induction. H e was discharged on October 13, 1044, because he did
not meet tho minimum standards for induction. The veteran's
hearing was given a rating of 15/15 in each ear in his separation
examination, which states that the veteran's eardrums were scarred
without drainage.
After his discharge the veteran filed a compensation claim with the
Veterans' Administration, and service connection of his ear condition
was granted as 0 percent disabling in Juno 1945 on the basis of a Vet-
erans' Administration examination diagnosing ins condition as chronic
otitis media. His hearing was given the rating of 15/15 in each car.
In February 1951 tho veteran filed a claim for an increased dis-
ability rating. His hearing was then rated as 5/20 in each car. His
private physician stated that tho veteran's condition of otitis media
was caused in childhood, b u t t h a t upon the basis of audiogram tests,
he was of the opinion that the veteran's defective hearing was caused
by exposure to loud noises and blasts while ho was in active military
service. Two service comrades of tho veteran testified in lottere to
the Veterans' Administration t h a t the veteran complained of ringing
and aches in his ears shortly after he returned from an infiltration
course during his Army training, where a simulated mine blast had
exploded near him. They also testified that tho veteran had to obtain
cotton to absorb discharges from his ears and t h a t tho voteran was
hard of hearing subsequent to the explosion. On tho basis of this
evidence tho regional office increased the veteran's disability rating
from 0 to 30 percent.
On May 25, 1959, the veteran was notified of the regional office's
proposal, concurred in b y tho central office, to sever service connection
of his ear disease. The veteran's physician reaffirmed his findings
and opinion submitted to the Veterans' Administration in 1951 con-
cerning the cause of the veteran's ear trouble. Other letters wero
received by tho regional office from friends of tho veteran who stated
that the veteran had had no trouble with his ears until he was inducted.
On September 3, 1959, severance of service connection of tho veter-
an's ear disease was effected upon grounds that the grant of service
connection was a clear and unmistakable error. Tho veteran did not
appeal this decision until October 26, 1960.
OPINION
The decision of the regional office, severing servico connection of tho
veteran's ear condition, became final on September 3, I960. 1 T h e
veteran did not appeal that decision within the statutory period of 1
year, having filed his appeal on October 26, 1960, and he has produced
no new and material evidence to cntitlo him to a review under author-
ity of 38 U.S.C. 4005(b) and 38 U.S.C. 3004(a), quoted in tho margin. 1
Therefore, tho only jurisdiction which an appellate tribunal has to
reverse a final decision, where there is no now and material evidence, is
1
VA R I10*. FINALITY or DECISIONS.
(A) The decision of adnly constituted rating octnfij or Other occnoy of original ortrdJctloc triU be flnnl
and binding upon all field offices of the VA and Will nottoosubject to revision except by duly constituted
appellate authorities or eicept as provided In VA Refutation 110S * * *.
(C) A dodslon of on agency of original Jurisdiction which h not appealed within I year from the date of
notice of the disallowance will be Anal, Where on appeal U timely filed, the disallowance. If sOrmed. does
not become Anal until the date of Urn appellate decision (38 U.S.C. 4001(a) an4 4001(b))
' SS U.S.C. 400*. Applications for revlewon appeal.
(b) II no application tor review on appeal U died In accordance with this chapter within the l-year period,
the action taken on Initial review or determination shall become final anil the claim will no! thereafter b*
reopened or allowed, (inept that where subsequent to such disallowance new end material evidence lu tho
form of ©metal reports from the proper service depart men l Is secured the Administrator may Authorise the
reopening of the claim androWowof the former decision * ' '.
33 U.S.C. S0O4, Dtaltowdt rJofcw.^(a) Where n ctalra has been anally disallowed, a later tiaSm on Die
cainobctuaibasb.lftupportedbyMWBadmaterlalavlb^nce.th * * *.
 upon the basis that the decision was clearly and unmistakably in
error. 1 And since the veteran is seeking to reverse a decision which
has now become final, I hold that the burden of proof in showing such
error is upon the veteran.* The issue for decision then is whether the
evidence establishes that the regional office was clearly and unmistak-
ably in error in its decision to sever service connection of the veteran's
preservice ear disease.
The evidence clearly establishes, as it was noted in the veteran's
induction examination, that the otitis media existed prior to the
veteran's induction. Thus, the veteran's initial claim for service
connection was granted upon the basis that the ear disease was
aggravated while he was in military service. 8 When the regional
office reconsidered in 1959 the initial grant of service connection with
respect to the veteran's ear condition, under authority of VAR
1105(A), it determined that service connection upon the basis of
aggravation during service was clearly and unmistakably erroneous.
Tims, I turn to the evidence of aggravation.
In defining aggravation, 38 U.S.C. 353 provides—
A prciixisliitk injury or disease will be considered to have been aggravated by
activn military * * * service, where there is an increase in disability during
such service, unless there is a specific finding that the increase in disability is
due to the natural progress of the disease.
The evidence establishes that there was an increase in the veteran's
disability while lie was in activo military service. The peforations in
his eardrums were healed a t the time of induction. The service
medical reports mention statements of the veteran to the effect t h a t
he had had no car trouble since childhood. However, after approxi-
mately 3 months of active duty, from February 2 1 , 1944, to Juno 5,
1944, the veteran was suffering from atrophy of the membranes in his
ears and complained of ringing and aching in his ears. I t was because
of this ear trouble that the veteran was reclassified, and subsequently
discharged. There is also some evidence that the veteran was hard
of hearing upon his return from active duty. Upon the basis of this
change in the veteran's car condition from the time of his induction
to the time of discharge. I find t h a t there was an increase in disability
within the meaning of38 U . S . C 353.
Notwithstanding the increase in the veteran's ear disease during
military service, the regional office concluded t h a t service connection
for aggravation was erroneous. Since the decision of the regional
office is not in the record, it does not appear whether it made the
specific finding t h a t tho increase in disability was due to the natural
progress of the otitis media. Although failure to make this finding,
which is required by 38 U . S . C 353 where there is an incrcaso in dis-
* VAR nos. REVISION O» DECISIONS * • •
(A) Error.—Previous determinations on which on action was predicated, Including decisions of service
connection,degree of disability,age ' * ' and other Issues, will bo accepted as correct in tho absence o( clear
and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or
amended. The rating or other adjudicative decision which constitutes a reversal of a prior decision a n tho
grounds of clear and unmistakable error has thu same cITcct as If tho corrected decision had been made on t h e
dale of the reversed decision.
• Since VA It I IDS, when read as a whole, deems to place the burden of proof upon tho Government, where
It seeie» to revise a decision whieMbw become final, I bold that, by ttnalogy, the burden should be upun the
veteran, who Is Seeking a reversal of a final decision.
> 38 U.S.C. 310. Hatie entitlement.—For disability resulting from personal Injury Suffered Or disease con-
tracted In line of duty, or for aggravation of a prcexistlnn injury sutiered or disease contracted In Uno ol
d u t y , In tho active military service, during a period oi war. the United Slates will pay to any veteran t h u s
dlsablod and who was discharged or released under conditions other than dishonorable from tho period of
service in which said Injury or disease was incurred, or preexisting Injury or disease was aggravated, com pen.
gallon as provided In this subchapter ' ' *.
ability during service, might bo reversible error, there is no evidence
that such finding was not made, and the burden to produce such evi-
dence is upon the veteran. For purposes of this decision, I shall
assume that such finding was made.
It is fair to say that the policy underlying 38 U.S.C. 353, defining
aggravation, is to resolve all doubts in favor of the veteran where an
increase hi disability during service is shown. Once such increase is
shown, a specific finding that the increase was duo to the natural
progress of the disease must bo made before tho Veterans' Adminis-
tration can conclude that there is no aggravation. There is no
evidence whatsoever in the record upon which such a specific finding
could be made. There is no question that a change occurred in the
veteran's ear condition during military service, since the veteran was
discharged because of the change. The question arises as to tho cause
of that change. The veteran has produced evidence to show that the
change was caused b y blasts and otner noises to which lie was subjected
during military training. His fellow soldiers testified that after the
veteran completed the Army infiltration course, whero there were
simulated mine blasts exploding near him, his ears began to discharge
matter and that tho veteran had to obtain cotton to absorb the dis-
charge; they also stated that the veteran complained of aching and
ringing in his ears after the explosions. These statements corroborate
the testimony of the veteran's private physician. I t was his opinion,
on two different occasions, that although otitis media was contracted
in the veteran's childhood, the deafness of the veteran is due to
aggravation of the disease b y loud noises during military service.
These statements are more credible when it is considered that tho
perforations of tho veteran's eardrums were healed upon his induction.
On the other hand, there is no evidence t h a t tho veteran's ear
disease was active upon his induction or that there was no intervening
factor which would aggravate the veteran's condition, which would
be some grounds for sustaining a finding t h a t the increase in disability
during service was due to natural causes. The evidence compels the
opposite conclusion.
I do not conclude that there is a conflict in the evidence and t h a t
the veteran's evidence is more credible than the Government's evi-
dence. J conclude that there is no evidence upon which the regional
office could have made a required specific finding, which is essential
to its decision that there was no aggravation, whereas the veteran
has submitted convincing evidence to establish that his car condition
was aggravated during military service. Since there was no evidenco
to make the specific finding required by 38 U . S . C 353, in order to
deny a claim for aggravation, wnere there is an increase in disability
during service, ana since the veteran has produced convincing evi-
dence of aggravation during service, I hold t h a t the regional office was
clearly a n d unmistakably in error in its decision to sever service
connection.
I am mindful that part of the difficulty with tho veteran's case is
that his hearing was rated as normal on his discharge and in his first
Veterans' Administration examination; his ears on both occasions
were rated as 15/15, which I understand to mean normal hearing.
The first evidence of deafness was not submitted until 1951, when the
veteran applied for an increased disability rating. The fact, however,
that medical evidence does not show a decrease in hearing until 6
years after tho veteran's discharge is not determinative of whether
the original service connection claim, granted in 1945, was erroneously
severed; this evidence only pertains to the proper evaluation rating,
t h a t is, whether the initial rating should have been increased because
of the veteran's deafness. As discussed above, there is convincing
evidence of aggravation of the veteran's car disease during service,
and there is no contrary evidence.
CONCLUSIONS OF LAV
In view of tho foregoing and of all the evidence of record, I make tho
following conclusions of law;
(1) T h a t the veteran was discharged under conditions other than
dishonorable, and that his ear disease, diagnosed as otitis media,
existedprior to his induction.
(2) T h a t tho decision, severing service connection of the otitis
media, had become final when the veteran appealed, and that tho
veteran has submitted no new and material evidence, which would give
his claim tho attributes of a new claim.
(3) T h a t I have jurisdiction under VAR 1105(A) to review a final
decision of tho regional office, even though there is no new and mate-
rial ovidence, to determine whether tho regional office committed a
clear and unmistakable error in severing service connection, and that
the veteran has the burden of proving such error.
(4) T h a t the policy underlying 38 U.S.C. 353, defining aggravation,
requires that where an increase in disability during service is shown,
all doubts must bo resolved in favor of the veteran, unless there is
evidence upon which the regional office con find that the increase is duo
to natural causes.
(5) T h a t there was an increase in the veteran's car disease during
military service, and that there is no evidence upon which the regional
office could have found that the increase was duo to natural causes,
whereas tho veteran adduced convincing evidence of aggravation dur-
ing military service.
(0) That, therefore, the decision of the regional office was cloarly
and unmistakably in error, and that service connection should be
restored.
C A S E NO. 3
ISSUE
Service connection for deformity of the right foot due to osteo-
myelitis.
FINDINGS OF FACT
(1) Claimant's induction examination in October 1942 showed the
existence of osteomyelitis of the right, foot and deformity of the big
too. H e was inducted for limited service.
(2) The Board finds that this condition first appeared in 1932 when
ho was hospitalized for a period of 4 months. Prior to his induction
tho foot had given him trouble and forced him to quit work as a
former.
(3) Tho claimant hod been excused from basic training because of
his condition. On January 6, 1944, he was given a disability discharge
since- he seemed unable, because of his condition, to perform his duties
in the mess squadron—tho only work that he seemed capable of
performing.
(4) Tho diagnosis of tho C D D examination was followed by a state-
ment that "excessive standing on a structurollv defective foot has
permanently aggravated tho pain and deformity proximal to tho
defect." The recommendation for C D D further stated that it was
in the line of duty because of the length of service and because the
condition was considered to have been aggravated by military service.
(5) In January 1944 claim was filod, tho claimant alleging that it
was impossible to stand or walk for more than a few hours. Service
connection was granted for tho disability on a basis of presumptive
aggravation.
(6) Tho claimant's disability worsened, according to VA medical
records of 1947 and 1948, being further aggravated b y a pronounced
limp and a scar on tho big toe. A letter from his private physician
of July 1960 stated that no was unable to fix the responsibility for
tho veteran's symptoms, definitely, on any of tho preservico or post-
scrvico conditions.
(7) A nationally authorized review of 1959 led to the proposal to
Bevcr his service connection as having been granted because of clear
and unmistakable error and, with central offico concurrence, was
accordingly severed on November 16, 1960.
(8) Appeal was made to the regional offico and tho decision was
upheld in these words:
Service connection for deformity of the right foot cannot now be conceded (a)
because evidence has heretofore been held Insufficient to show that aggravation of*
the vetcrnn's right foot disability occurred in service and (6) because thin Hoard
cannot hold on the basis of clear evidence, us distinguished from n difference of
opinion as to the weight of tho recorded evidence, that the decision appealed from
is unmistakably wrong.
From this ruling, the claimant appealed to this Board.
CONCLUSIONS OF LAW
(1) The claimant is a veteran of active military service during a
period of war and was honorably discharged within the meaning of
38 U.S.C. section 101.
(2) Consequently, he becomes cntifted, under section 310, to com-
pensation for disability resulting from injury suffered or disease con-
tracted in the line of duty or for service aggravation of a preexisting
injury or disease.
(3) Since the condition for which service connection is claimed was
noted at the time of induction, the only basis for tho claim is service
aggravation of this disability. Thero is evidence that this condition
deteriorated during the period of service. For tho decision of sever-
ance to be upheld, sections 311 and 353 require that the evidence bo
clear and unmistakable that tho deterioration is the natural evolution
of the deformity and not tho result of servico aggravation. Tho
Board concludes that this quantum of proof is not met.
(4) Furthermore, the language of the regional offico's decision
shows that the benefit of the presumption of sections 311 and 353 was
not accorded to the veteran before that body. Section 311 requires
clear and unmistakable evidence showing that deterioration or tho
severity of a condition noted at the time of induction is not caused by
service. Section 353 makes clear t h a t the onus is not on the veteran
to show that aggravation was caused by his service tour.
JUDGMENT
I n accordance with the foregoing findings of fact and conclusions
of law it is ordered, adjudged and decreed that the service connection
for deformity of the right foot be restored.
CASE N O . 3
This is a proceeding instituted to sever service connection of a
deformity of the right foot and a shortening of the right great toe.
The issue for decision is whether the evidence of record establishes that
service connection of the above disability, upon the basis of aggrava-
tion of a preservice bono disease during military service, is clearly and
unmistakably erroneous.
FINDINGS OF FACT
The veteran was inducted for military service on Oetobcr 5, 1942.
I t was noted in his induction examination that the veteran was suffer-
ing from a bone disease, diagnosed as osteomyelitis, in his right foot;
the examination also revealed that the veteran's right great toe was
deformed. The record shows that the veteran had haa trouble with
his foot in 1932 and that p a r t of the bone in his right foot had to be
removed. Because of this condition it was recommended that the
veteran be placed upon limited duty, and when the veteran was
examined on October 30, 1942, it was again recommended that the
veteran be classified for limited duty. Another examination was
made in August 1943, and the osteomyelitis was found to be healed;
howevor, the same record shows that the veteran was not on limited
duty.
On December 15, 1943, the veteran appeared at a hospital and
requested a reclassification; at that time he was not on limited duty.
The hospital report of this date contains a lengthy history of the
veteran'B foot trouble and of his status in military service. I t
states that an operation was performed on the veteran s foot in 1932
to remove part of the bone, and that the lesion therefrom was healed
within a year and one-half after the operation. Thereafter, the
veteran worked as a farmer until he was forced to quit because of a
weakness in his foot. It was also noted in the hospital report that
the veteran upon induction was classified for limited duty, but that
he was given general detail work to perform. The veteran complained
that because of pains in his right foot and knee he could no longer do
this work. A diagnosis at this time revealed that there was a de-
formity of his right foot and that there was also a shortening of his
right great toe, which was secondary to the preservice osteomyelitis.
The diagnosis concluded t h a t "excessive standing on a structurally
defective foot has permanently aggravated the pain and deformity
proximal to the defect," and s t a t e d t h a t the aggravation was incurred
in line of duty.
The veteran was discharged from military service on January 6,
1944, because of the deformity in his right foot and the shortening
of his toe. His certificate of disability discharge stated that he had
served for the previous 9 months in the mess squadron, which was the
only work for which he was fitted. The certificate also stated that
his condition was aggravated in the line of duty.
After his discharge the veteran filed a compensation claim with the
Veterans' Administration, alleging that the osteomyelitis had been
aggravated in military service and t h a t i t was impossible for him to
walk or stand more than a few hours. In May 1944, service connection
for the veteran's deformity of the right foot and shortening of the
right great toe was granted on a basis of "presumptive aggravation,"
because there were incomplete service records. In his initial Veterans'
Administration examination, i t was stated t h a t the veteran's post-
service occupations included work as a truckdriver and as a helper
with oilfield equipment. Besides noting the deformities in his right
foot, the examination revealed that the veteran limped, favoring the
right foot. A later examination in April 1947, showed that because of
ankylosis of the first cuneiform, the veteran had no control over his
right toe. At that time he was working for a poultry company.
The veteran was most recently examined in July 1960, by his private
physician. Swelling of both knees and an altered gait were found in the
examination. The examining physician stated that he was unable to
fix responsibility for the veteran's symptoms definitely to any period
prior to, during, or after service.
Then ( in July 1959, the regional office proposed to sever service
connection of the veteran's foot condition, on the grounds that service
connection was clearly and unmistakably in error. The regional office
found that the deformity of the veteran's right foot was not due to
service, because of insufficient evidence to show aggravation. With
the approval of the central office, the regional office severed service
connection of the veteran's disability on November 16, 1960.
The veteran brought this appeal from the regional office's decision
on December 7, 1960.
OPINION
Although the regional office did not state the authority under which
the veteran's claim was severed, I hold that the applicable regulation is
•VAR 1105(D), quoted in the margin. 1 The regional office apparently
applied tins regulation, since severance was made on the grounds that
service connection was a clear and unmistakable error and since
approval oi the central office was obtained before severance. There
is no evidence that the regional office obtained from the proper
authorities a certification of a change in diagnosis of the veteran's
health; thus, severance of service connection of the veteran's dis-
ability must be warranted upon the facts oi record, as found above,
in order to sustain the decision of the regional office. The burden of
proof is upon the Government. The primary issue for decision, there-
fore, is whether, as grounds for severance, the evidence establishes
that service connection oi the deformity in the veteran's right foot and
of the shortening of his great right toe is clearly and unmistakably
erroneous.
i VAR HQJ<D). S««ranMo/««rrfc«emin«*toii.—3«rvlo8 connection will be severed <ml| whereevidence
establishes that it li clearer and unmUakablf crrtmtou* (fht burdn of proof Ulnt upon Iki Ootrnmtnti. A
chanfelndb^o^ro«rbe>crapt«duab(tsutartaT«ranoeBCt]onirth«e»nilnlnitph]rslclBn * * * certiaei
that, in the light of all accumulated evidence, the diagnosis on which scrvlc* connection n i predicated Is
clearly erroneous * * *. When iterance of service connection U contlderod warranted, a rattnj propos-
ing severance will be prepared settingforthall material tacts and reasons and submitted to tbe central office
br reviewwUnoutnotlcetoclalmBntorrepreaenUtlve * * *. [Emphasisadded.1
 The evidence clearly establishes that the bone disease, diagnosed as
osteomyelitis, and the deformity of the big toe existed prior to service,
and the presumption of sound condition provided for in 38 U.S.C. 311
is, therefore, not applicable. For that reason, service connection was
initially granted upon the basis of "presumptive aggravation" because
the veteran's service records were incomplete. yhe regional office
however, determined that the evidence was insufficient to show aggra-
vation of the veteran's disability during service. I, therefore, turn to
the evidence of aggravation, keeping in mind that the burden to
prove that there was no aggravation is upon the Government.
In denning aggravation, 38 U.S.C. 353 provides—
A preexisting Injury or disease will be considered to have been aggravated by
active military * * * service, where there la an increase In disability during
such service, unless there is a specifio finding that the Increase in disability a
due to the natural progress of the disease.
The evidence clearly establishes that there was an increase in the
veteran's disability—the deformity of his right foot due to osteo-
myelitis—during military service. Osteomyelitis of the right foot
and a deformity of the right big toe were discovered upon the veteran's
induction, but the veteran was nevertheless considered acceptable
for limited duty. From his induction on October 5,1042, to December
1943, a period of well over a year, the veteran performed his assigned
duties, apparently without difficulty from his foot; in fact, in August
1943, a diagnosis of the veteran's foot revealed that the osteomyelitis
hod healed. However, in December 1943, the veteran complained
of pains in his right foot and knee, and a diagnosis on December 15,
1943, showed not only the deformity in his right foot, but also a short-
ening of hia right great toe. Since there was this change in the vet-
eran's foot trouble during military service, from a point where the
veteran could perform hiB duties to a point, a year later, where he
could no longer perform those duties, I find that the evidence estab-
lishes an increase in disability during military service.
The regional office, in effect, concluded that this increase was not
due to military service. However, there is substantial evidence to
support the finding;, made by the agency which granted service con*
nection, that the increase in disability during service was due to
aggravation in the line of duty. Thft diagnosis of the veteran's condi-
tion on December 15, 1943, stated "excessive standing on a structur-
ally defective foot has permanently aggravated the pain and deformity
proximal to the defect,' and concluded that this aggravation was in-
curred in the line of duty. [Emphasis added.] The evidence also
establishes that although the veteran was on two occasions recom-
mended for limited duty because of hia foot, he was placed upon
general detail work in the mess squadron, which would have required
continuous standing, and, therefore, aggravation of his preservice
osteomyelitis would result. Finally, the veteran's certificate of dis-
ability states that his condition was aggravated in the line of duty.
On the other hand, there is little evidence to support the specific
finding, required by 38 U.S.C. 353, quoted above, that the increase in
disability during military Bervice was due to the natural progress of
the veteran's osteomyelitis. The evidence does establish that the
veteran had difficulty with hia foot prior to induction and that he had
to quit a job because of that difficulty. After his discharge, the vet-
eran had several jobs which would require standing for long periods.
Also, the veteran's private physician stated that he could not fix the
responsibility for the veteran's condition to any particular period.
In view of the foregoing evidence, I am of the opinion that the evi-
dence does not establish, as required by VAR 1105(D), that service
connection of the veteran's disability is clearly and unmistakably
erroneous. It is not necessary to discuss further the weight of the
evidence upon the veteran's side and upon the Government's side.
The burden to show clear and unmistakable error is upon the Govern-
ment, and, having considered the reliable medical evidence of aggrava-
tion, I conclude that the Government bos not sustained its burden of
proof.
The conclusion reached is in accord with the policy of both 38
U.S. Code 353, defining aggravation, and VAR 1105(D). Once an
increase in disability during military service is established, there
must be evidence upon which to make a specific finding that such
increase was due to natural causes before the Government can deny
aggravation. The Government has adduced little evidence to support
such finding in view of the evidence to the contrary. Also, once
service connection is granted and the determination oecomes final,
mere doubt that service connection is proper is not enough to sover
service connection; clear and unmistakable error must be shown.
I am unable to find such error in the determination of the agency
which initially granted Bervice connection. For these reasons, the
fact that service connection was granted on tho basis of "presumptive
aggravation" in the veteran's case is of no consequence; the proof
required by VAR 1105(D) to sever scrvico connection remains the
same.
CONCLUSIONS OP LAW
After consideration of all the evidence of record, and in view of the
foregoing, I make the following conclusions of law:
(1) That the applicable Veterans' Administration Regulation to
determine whether service connection of the veteran's disability should
be severed is VAR 1105(D).
(2) That osteomyelitis and a deformity of the veteran's big toe
ixisted prior to service, and that the veteran was discharged under
conditions other than dishonorable.
(3) That there was an increase in disability during military service,
and that there is substantia] medical evidence upon which the agency,
which first granted the veteran's service connection claim, could have
found aggravation of the preservice disease during military Bervice.
(4) That the evidence of record does not establish that Bervice
connection upon the basis of aggravation during military service is
clearly and unmistakably erroneous.
(5) That, therefore, there was no basis upon which tho regional
office could have Bevered service connection of the veteran's disability,
and that Bervice connection of the deformity of the right foot and
shortening of the veteran's right great toe should be reinstated.
CASE No. 4
This is a proceeding instituted pursuant to VAR 1105(D) to sever
service connection for residuals of the removal of tho veteran's left
eye and entitlement of the statutory compensation for the anatomical
loss of one eye. The issue for decision is whether the evidence of
record establishes that service connection for the loss of the veteran's
left eye, on the basis of aggravation of a preservice eye condition
during military service, is clearly and unmistakably erroneous.
FINDINGS OF FACT
Upon consideration of all the evidence in the record, I hereby make
the following findings of fact:
The veteran was inducted for military service on December 18,
1942. It was noted in his induction examination that the veteran
had no vision in his left eye and that his left eye was in a degenerate
condition. Subsequent examinations revealed that the veteran's eye
was injured prior to service from an explosion of a cap.
On Juno 5, 1943, the veteran was transferred to tho European
Theater of Operations in Iran, where he remained until February 1945.
There is no evidence that the veteran was ever engaged in combat
with the enemy.
The veteran returned to the United States in March 1945. An
examination shortly thereafter revealed that there had been a gradual
change in the iris of the veteran's left eye and also a gradual recession
of the left eyeball. Enucleation was found to be necessary, and on
May 19, 1945, the veteran's left eye was removed. A microscopic
examination of the eye showed (1) chronic keratitis, chronic uveitis,
calcified cataract, detachment gliosis, and calcification of retina;
(2) intraocular hemorrhage; (3) ossification of choroid; (4) phthisis
bulbi. Thesefindingswere submitted in a report dated July 31, 1945.
The veteran was discharged in July 1945. It was stated in his
separation examination that the left eye of the veteran had been
injured prior to service, and that since the veteran's left eye had
begun to givo him more distress while he was in Iran, it had to be
removed.
After his discharge, the veteran applied for service connection for
residuals of the removal of his left eye with entitlement to the statu-
tory award for the anatomical loss of one eye. This claim was
granted in September 1945 with an evaluation of 10 percent disability,
on the basis that the veteran's preservice eye condition was aggra-
vated during military service. Although this rating was confirmed
in 1946 and again in 1948, the regional office in September 1959
proposed, pursuant to VAR 1105(D), to sever service connection
of tie previously granted disability on the grounds that there was no
evidence of a superimposed disease, trauma, or other condition which
might have aggravated the veteran's eye condition. The central
office concurred in the proposal to sever service connection.
The veteran was informed that service connection of his disability
would be severed on November 1, I960. Prior to the effective date of
severance, the veteran submitted additional evidence in the form of a
statement, in which he said, in effect, that although his left eye was in
a degenerate condition when he was inducted, his left eye at that time
was almost as large as his right eye. He stated that when he returned
from Iran, his eye had deteriorated to the extent that he could only
open his eyelid partially. He alleges in this statement that the de-
terioration of his left eye was caused by the excessive heat in Iran.
The veteran has brought a timely appeal from the decision of the
regional office.
OPINION
The applicable Veterans' Administration regulation, applied by the
regional office, to determine whether service connection of the veter-
an s1 disability should be severed is VAR 1105(D), quoted in the mar-
gin. Since there is no evidence of a certification of a change in
diagnosis of the veteran's condition, severance of service connection
must be warranted upon the facts of record, as found above, to sus-
tain the decision of the regional office; the burden of proof in this
case is upon the Government. The primary issue for decision, there-
fore, is whether the evidence estabhahes that service connection for
the loss of the veteran's left eye, on the basis of aggravation of a pre-
service eye condition during military service, is clearly and unmis-
takably erroneous.
The evidence clearly establishes, as it was noted in hiB induction
examination, that the veteran was blind in his left eye and that his left
eye was in a degenerate condition at the time of induction. Therefore,
the presumption provided for in 38 U.S.C. 311, is inapplicable to this
case.
The veteran's original claim for service connection was granted in
July, 1945, on the basis of aggravation of the veteran's eye condition
during service. The regional office, however, determined that there
was no evidence of a superimposed disease, trauma, or other factor
which might have aggravated the eye condition, and that, therefore,
service connection for aggravation is clearly and unmistakably er-
roneous. The veteran contends, by way of additional evidence
submitted after he was notified of the proposal to sever, that the
deterioration of his left eye was caused by excessive heat while he was
in Iran, and also, that the microscopic report on July 31, 1945, estab-
lishes the probability that bis eye was infected during service. I,
therefore, turn to a consideration of the evidence of aggravation.
In defining aggravation, 38 U.S.C. 353 provides—
A preexisting injury or disease win be considered to have been aggravated by
active military * • * service, where there is an increase in disability during
such Bcrvice, unless there is a specific finding t h a t the increase in disability is
due to the natural progress of the disease.
The evidence clearly establishes that there was an increase in the
veteran's eye trouble during military service. Although the veteran's
left eye was in a degenerate condition when he was inducted, he was
nevertheless accepted for military service. During the first 6 months
of duty, from December 1942 to June 1943, there is no evidence that
the veteran had any difficulties with his left eye. However, sometime
after he arrived in Iran in August 1943, he began having distress from
his left eye. When he returned to the United States in March 1945,
it was noted in an examination that a gradual change had occurred in
tho appearance of the iris of his left eye; a gradual recession of his left
eyeball was also found. In his statement to the Veterans' Adminis-
1
VAR 1109(D), Strtrime* o/link*nniuttb*.—Strrlce ootmccUoa will bo « n n d on!t a-ttcra erfctenoe
established that it Is tlearlf ««* unmitlakablf errontwi (Ihttmrden o/proof btlnt upontht Oonrnmtnt). A
ctiaogetndU^oiUmarbeMOopUduBbuisbrHrcniioeactlDDlltlMeuminlniphrtld&ii * * * certifies
thai, in light of all accumulated evidence, the dlamosls on which service connoctloo was eradicated li
clearly erroneous. * * * When severance of service connection ii considered warranted, a rating propwdnn
severance will be prepared setting forth all material fact* and reason* and submitted to tho central office for
review without notice to claimant or representative. *** | Emphasis added.)
tration, the voteran said that he could hardly open his left eye upon
return from oversea duty, whereas when he was inducted his left eye
was almost as largo as his right eye. I t was determined on May 19,
1945, t h a t the veteran's eye, occause of the distress which it was then
causing him, had to be removed. Since there was this change in the
veteran's eye condition from a point where his eye, although blind,
gave him no appreciable distress to a point where the distress was
such as to require removal of the eye, I find that the evidence estab-
lishes an increase in the veteran's disability during military service.
Whether this increase in disability during service is attributable
to aggravation from tho excessive heat to which the veteran was
subjected, as ho contends, or to natural causes is not the determining
factor in this case. The question is whether the evidence taken as a
whole shows t h a t service connection of the veteran's disability upon
the basis of aggravation, as previously determined, is clearly and
unmistakingly erroneous. There is evidence from which a finding
of aggravation during service could reasonably bo made. The
veteran's contention. that the deterioration in his eye, causing its
ultimate removal, was aggravated from excessive heat while ho was in
Iran is corroborated by other evidence. The medical reports establish
that tho veteran's oye began bothering him while he was in Iran;
prior to his shipment to Iran thero is no evidence that tho veteran had
difficulty with his eye. Also, an examination of his left eye, when he
returned to the United States, confirms the veteran's statement that
there had been a gradual change in his eye while ho was in Iran. Tho
Government's evidence, on the other hand, establishes that the
veteran's eye condition existed prior to his induction. Except for tho
above evidence, there is no other evidence of an intervening factor
such as a superimposed disease which might have aggravated the
veteran's eye condition during military service. I t is noteworthy,
too, that tho veteran was in military service only a short time from
December 1942 to June 1943 before ho was transferred to Iran, where
he spent most of his time during service; from this evidence it might be
argued that if tho veteran's eye was Blowly deteriorating when he was
inducted, the effects of such natural deterioration would have become
noticeable in Iran.
In view of the conflicting and somewhat meager evidence in the
record, I cannot agree witli the regional office that the evidence
establishes clear and unmistakable error in continuing service con-
nection of the veteran's disability upon the basis of aggravation.
Although tho evidence does not establish whether the veteran was
ever engaged in combat with tho enemy, duo consideration to the
circumstances and place of service and of tho veteran's lay evidence is
required to be given by 38 U.S.C. 354, quoted in the margin.' I
consider significant the fact that the veteran was stationed in Iran
during the war and the fact that tho veteran's statement that the heat
affected his eyes while ho was in Iran is supported in part by medical
rcporlB made upon his return to the United States. Even if this
statement and the corroborating evidence is given little weight, such
evidence at least raises some doubt as to the cause of the change in
• 38 U.S.C. SM. amiUtT(UlontotMauor&dUm*,f>laet,etLdHTamitaaeaefttTriet.—
(a) The Administrator thai] include la tho regulations pertaining to service connection of disabilities,
additional provisions In effect requiring that In each case where a veteran Is seeking service connection for
any disability doe consideration shall be Fiven to the places, types, and circumstances of his service as shown
by hb wrvtce record, the official history or each orgoniialf on fh which no served, his medical records, and all
pertinent medical and lay evidence.
the veteran's condition during military service, and the Government
must prove clear and unmistakable error to sever Bcrvice connection.
The veteran also contends t h a t tho findings made on July 31, 1945,
raise a probability of infection, which must have boon incurred during
service, aggravating the veteran's left oyo. I do not place much
weight upon this evidence, since somo of the findings wero identical to
findings made shortly after the veteran's induction.
I conclude, therefore, that the regional office was in error in deter-
mining under VAR 1105(D) that service connection was clearly and
unmistakably erroneous. The ovidonco taken as a whole does not
support such an ultimate finding.
CONCLUSIONS OP LAW
After consideration of all the evidence of record, and in viow of the
foregoing, I make tho following conclusions of law:
(1) That the applicable Veterans' Administration regulation to
determine whether sorvice connection of the veteran's disability should
bo severed is VAR 1105(D).
(2) T h a t tho veteran's disability of blindness and degeneration in
his left eye existed when ho was inductod, and that the voteran was
discharged under conditions other than dishonorable.
(3) That the evidence establishes an incroaso in tho votoran's
disability during militury servico, and that, giving duo consideration
to the circumstances and place of service and of tho votoran's lay
evidence, there is substantial evidenco to support tho finding, whicn
was made by tho agency which previously granted servico connection,
that tho veteran's eye condition was aggravated during military
service to such an extent that it had to bo romoved.
(4) That in light of tho conflicting ovidonco, the ovidonco takon as
a whole does not establish that servico connection of tho votoran's
disability upon the basis of aggravation during military servico is
clearly and unmistakably erroneous.
(5) That, therefore, the regional office orroneously severed servico
connection of the veteran's disability, and that servico connection of
the residuals of the removal of tho veteran's left oye ; with tho statu-
tory award of compensation for his loss, should bo reinstated.
C A S E No. 4
ISSUE
Restoration of service connection for blindness and removal of the
left eye and entitlement to special monthly pension for anatomical
loss of said eye.
FINDINGS OP PACT
(1) I t was noted at the time of induction that tho vision in the
claimant's left eye was nil and that it was degenerated.
(2) The eye was enucleated on May 24, 1945. Examination at
this time revealed that tho eye, a result of an old injury incurred when
a cap exploded, had a granaual change in appearance of tho iris and
a gradual recession of the eyeball.
(3) Tho claimant testified that ho was blind when ho entered tho
servico but, at that time, it was almost as largo as the right oye. How-
ever, he stated t h a t when he had returned from oversea duty in Iran,
the eye had deteriorated so that he could only open the eyelid halfway
and one, Captain Kosen, had suggested enucleation. H e said t h a t he
objected to the removal b u t was advised t h a t the operation was abso-
lutely necessary for his health's sake,. H e claims deterioration was
caused by excessive heat in Iran.
(4) The claimant's discharge examination noted that the eye had
been injured prior to service and it began to give moro distress in Iran
and was removed.
(5) On September 1945 the claimant was granted service connection
for residuals of the removal of the oye as well as the statutory award
for anatomical loss of the eye.
(6) Severance of the service connection was proposed in September
1959 on the basis t h a t there was no evidence oi superimposed disease,
trauma, or other disease referrable to the eyes in service and tnat
aggravation was not shown. In September 1960 service connection
was severed and appeal was taken to this Board.
CONCLUSIONS OP LAW
(1) The claimant is a veteran of active military service during a
period of war and was honorably discharged within the meaning of
3 8 U . S . C , section 101.
(2) Consequently, he becomes entitled under section 310 to com-
pensation for disability resulting from injury suffered or disease con-
tracted in the lino of duty or for service aggravation of a preexisting
injury or disease. In addition, under section 314, the veteran is
entitled to compensation for anatomical loss of his eye if the result of a
service-connected disability.
(3) T h e condition of the veteran's eye was noted at the time of
induction. However, the evidence of record shows that the condition
deteriorated and became more severe culminating in medical advice
that it be removed. Where an increase in the severity of a preexisting
condition is experienced during service, sections 311 and 353 require
that before service connection may be severed, clear and unmistakable
evidence bo adduced to show that this is not the result of service
aggravation. This burden of proof has not been met. Moreover,
the veteran's contention that tho increase in severity and deterioration
of his eye was caused by the severe Iranian desert heat has remained
un assailed.
JUDGMENT
In accordance with tho foregoing findings of fact and conclusions of
law, it is ordered, adjudged, and decreed that the veteran's service
connection and statutory compensation be restored.
CASE No. 5 of proof in establishing thoso facts is upon tho Government. T h e
This is a proceeding instituted pursuant to VAR 1105(D) to sever
service connection of an ulcer condition, 10 percent disabling. Tho
issue for decision is whether the evidence of record establishes t h a t
it was clearly and unmistakably erroneous for the agency, which
decided the veteran's claim initially( to grant service connection of
the veteran's preservice ulcer condition on the basis of aggravation.
FINDINGS OF FACT
Upon consideration of all the evidence in the record, I hereby make
the following findings of fact:
The veteran was inducted for military service on March 30, 1945.
His abdominal viscera was found to be normal at his induction exam-
ination. On April 22, 1945, the veteran was admitted to a military
hospital because of stomach troublo. The veteran at this time stated
that he had ulcer trouble for about 3 years prior to his induction.
X-rays taken at tho hospital verified tho veteran's statement, and the
hospital report rovealed that the veteran's stomach trouble was caused
by an ulcer, which had been active at one time. T h e veteran was
given a medical discharge on June 2, 1945; the certificate of disability
stated that the veteran s-ulcer condition existed prior to his induction
and was not incident to nor aggravated by active military service.
The veteran was at no time engaged in combat with the enemy.
After his discharge the veteran filed* a claim with the Veterans'
Administration for service connection of his ulcer condition by aggra-
vation in military service. On the basis of a Voterans' Administration
examination, diagnosing tho veteran's ulcer as duodenal, tho service
connection claim on grounds of aggravation was granted in June 1945
as 10 percent disabling.
From 1945 to 1959 the veteran received numerous examinations and
treatments at Veterans' Administration hospitals for his ulcer con-
dition. X-rays and barium meal tests revealed a severe and chronic
duodenal ulcer. Most recently the veteran was admitted to a Vet-
erans' Administration hospital from October 6, 1959, to October 10,
1959, because of severe epigastric pain. During the period from 1945
to 1959 the original rating of 10 percent disability was continued.
On February 23, 1980, the Veterans' Administration proposed to
sever service connection of tho veteran's ulcer condition, pursuant to
VAR 1105(D). This proposal was concurred in by the central office,
and after due notice to the veteran, tho regional office on November
7, 1960, severed the service connection, wliich had been previously
granted in June 1945 on the grounds t h a t aggravation was not shown
in the original claim.
The veteran has appealed the regional office's decision to sever.
OPINION
Tho applicable Veterans' Administration regulation, applied by
the regional office, for severance of sorvice connection is VAR 1105(D),
quoted in the margin. 1 Since there is no evidence of a certification
of change in diagnosis in the veteran's health, severanco of service
connection must bo warranted upon the facts of record, as found
above, in order to sustain tho decision of the regional office; tho burden
primary issue for decision is whether, as grounds for severance, the
evidence establishes that it was clearly and unmistakably erroneous
1
VAR 1105(D). Satnnct cftatk* amnatton.—Berries connection will be severed only where evidence
establishes that Utoclearly and unmistakably erroneous (the burton oi proof bring upon the OovernTnem).
Acb»nnUid|afncal]maybeiiceeptadasabub[orteverraMiu»Mnirtheeuimmrnsph]nlclan * * * certi-
fies thai, la ihellgbt of all accumulated evidence, (he diagnosis on which service connection was predicated
la clearly erroaeoas. ' * * Whcnttvoranceo'torrlcccoanec&lonlsajnsldcredwarranted, a ratlni proposing
•Bvunnce will be prepared MtUnc forth all material facta and reasons and submitted to the central office
tor rarietr wUboot notke to claimant or representatives. * * *
for the agency, which considered tho veteran's initial claim in June
1945 to grant Bervico connection of the veteran's preservice ulcer
condition on the basis of aggravation. 1
I t should be mentioned that the veteran stated, when filing his initial
claim for service connection, that his ulcer condition began in 1937,
and there is substantial medical evidence to rebut the presumption of
sound condition upon induction, provided for in 38 li.S.C. 311. I
therefore, turn to the question of what constitutes aggravation of a
preexisting disease.
In defining aggravation, 38 U.S.C. 353 provides—
A preexisting injury or disease will bo considered to have been aggravated by
active military * • * BCrvice, where there Is aa increase in disability during
such service, unless there is a specific finding that the increase in disability is
duo to tho natural progress of the disease.
There is substantial evidence to establish a finding that the change
in tho veteran's condition from the time of induction on March 30 to
his admission to the military hospital because of stomach trouble on
April 22 was due to tho duodenal ulcer which had been active prior to
the veteran's induction and was not duo to aggravation from military
service. First, tho veteran was in active service for only about 3
weeks, from March 30 to April 22, when his stomach trouble recurred,
and was in military service for a total of only 2 months, from March 30
to Juno 2. And it is upon this basis that "his claim of aggravation is
made. There is no evidence of any factor which might nave caused
aggravation during such a short time in military service. Second, the
veteran's disability certificate, based upon the separation examination
of the veteran, states that the ulcer condition was not incident to and
was not aggravated by military service. In view of the short period of
scrvico and of tho compelling medical evidence in the veteran's dis-
ability certificate, I find t h a t the increase in disability of tho veteran
was not caused by aggravation while on active duty, b u t was a result
of the natural progress of the ulcer condition, which had troubled the
veteran prior to his induction. The only remaining question is
whether this evidence establishes that it was clearly and unmistakably
erroneous for service connection to have been granted.
All of the evidence discussed above was before the agency which
decided the veteran's initial claim. The only evidence in the veteran's
favor, which might bo used to sustain the service-connection claim, is
that in the veteran's induction examination no ulcer troublo was
found, and from this fact it might be argued that the ulcer was healed
when tho veteran was inducted. However, there is no evidence that
in the induction examination X-rays were taken or that any other
tests wore made which would have revealed an ulcer condition, if one
existed*. When X-rays were taken on M a y 9, 1945, tho ulcer was
found. Since the induction examination was too inconclusive to
establish that the veteran's ulcer was healed or inactive upon induc-
tion, especially in light of the X-rays taken shortly after induction,
I am of tho opinion that it was clearly and unmistakably erroneous
for tho agency, which originally considered the veteran's claim, to
* 38 U.S.0.110. Ro*k ratlOrxMnt.—Far disability retalttag from peaonai Injury differed or dltose con-
tracted In line of duty, or for afgrovat Ion of a prceilsttnf Injury cullered or disease contracted Inline of duty,
In the ecti»« military, naval, or olr service, durlnt a period of war, the United BtaUS will nay to any veteran
thus dlsablod and who was dlschareed or rcle&MOunder condition* other than dishonorable from the period
of service tn which tald Injury or discasa was Incurred, or preexisting Injury or disease was anravated
vmpensatton aa provioed In this subchapter, but no compensation ihnllbe paid If the disability b tho result
of the veteran'i own wUITul misconduct.
grant service connection upon the basis of the induction examination.
There is no evidence to support a contrary conclusion.
CONCLUSIONS OF LAW
In view of the foregoing and of the evidence of record, I make tho
following conclusions of law:
(1) T h a t the veteran's ulcer condition existed prior to induction,
and that he was discharged under conditions other than dishonorable
(2) T h a t there was an increase in the veteran's disability during
military service, but that the increase was due to the natural progress
of the veteran's duodenal ulcer and was not duo to aggravation in
military service.
(3) T h a t it was clearly and unmistakably erroneous to grant tho
veteran's initial service-connection claim in 1945 upon tho basis of
the veteran's inconclusive induction examination.
(4) T h a t service connection of tho veteran's duodenal ulcer should
bo sovcred and the appeal from the Veterans' Administration decision
should be dismissed.
CASE N O . 6
ISSUEl
Bestoration of service connection for duodenal ulcer.
FINDINGS 0 7 PACT
(1) Claimant was inducted into the scrvico in May 1944, his induc-
tion examination report having no notation of an existing ulcer
condition.
(2) On December 29, 1944, he was admitted to the outpatient
clinic of Camp Gordon, Johnston, Fla., with a history and complaints
of duodenal ulcer. The diagnosis was duodenal ulcer, modcrate-sevoro.
(3) On January 5, 1945, he was admitted to Station Hospital, Camp
Gordon, complaining of duodenal ulcer. Claimant stated, at that
time (prior to his service), that ho had been X-rayed and an ulcor
had been found and consequently he had been placed on a diet. On
the basis of a medical statement received by tho VA on January 29,
1945, from Dr. Paul C. Swenson stating that ho had oxamincd the
claimant on November 24, 1941, and found ovidonco of an active
duodenal ulcer, the Board finds that his ulcer condition dated from
1941—-prior to his induction into the service.
(4) On January 15, 1945, an X-ray with the aid of barium meal
showed the esophagus and stomach to be normal but that a duodenal
ulcer existed suppressing normal gastric mobility.
(5) T h e Board accepts as true claimant's statement to attending
physicians at Station Hospital, Camp Gordon that ho had been care-
ful of his diet sinco his 1941 treatment and had suffered no painful
symptoms until 5 weeks prior to his admission to that hospital. The
Board concludes that this, together with the fact that both tho induc-
tion examination and an X-ray administered to the claimant somo 4
months prior to his admission 'to Station Hospital both showed nega-
tive, indicates that his ulcer condition had become more severe or
reactivated during tho interim.
 (6) Claimant was told t h a t he must remain on diet for 18 montlis
and that he was not able to return to duty. Certificate of disability
discharge proceedings were initiated. On January 26, 1945, a final
diagnosis was made showing a chronic duodenal ulcer and an entry
was made stating that it had existed prior to service, but that it had
been aggravated b y service for the reason t h a t h e could not obtain
proper diet condition and that lie was under the nervous tension of
Army life.
(7) A claim was filed for compensation and on January 30, 1945, a
service connection was established with a 30-percent rating. This
was reviewed and reevaluated and reduced to 20 percent on February
6, 1947. This rating was confirmed five times through March 31,
1952, based on numerous VA examinations during this period which
showed the ulcer to be active and the claimant continued under
medication and diot.
(8) Thereafter, claimant filed both for service connection and a
non-scrvice-connected pension for a stomach condition which were
denied. He was hospitalized from August 8 toSeptember27,1958,and
from X-ray and laboratory findings, he was diagnosed as having
chronic brain syndrome, alcohol intoxication, and duodenal ulcer
disease, chronic and inactive. On September 29, 1960, his service
connection for duodenal ulcer was severed.
(9) His appeal to the regional office was unsuccessful. I t was held
that tho evidence in service failed to demonstrate any disease of
pathological development, to precipitate aggravation of the preservico
existing duodenal ulcer and that the symptoms presented was a
recurrence of the duodenal ulcer symptoms which existed prior to
service. From this holding, appeal was taken to this Board.
^ CONCLUSIONS OP LAW
(1) The claimant is a veteran of active military service during a
period of war and was honorably discharged within tho meaning of
38 U.S.C. 101.
(2) Consequently, he becomes entitled, under section 310, to com-
pensation for disability resulting from injury suffered or disease
contracted in the line of duty or for service aggravation of a pre-
existing injury or disease.
(3) The presumption, applicable to the instant cose, exists under
section 312 that a chronic disease becoming manifest to a degree of
10 percent or more within 1 year from the date of separation from
service of 90 days or more, during a period of war, shall be considered
to have been incurred in or aggravated by such service. A duodenal
ulcer is included under section 301's definition of a chronic disease.
(4) The evidence clearly and unmistakably shows that the ulcer
existed before service. However, the evidence adduced does not ap-
proach this quantum of proof required to show that the increase in
the severity of the condition was not the result of service aggravation.
Moreover, tho presumption of aggravation, under section 312, is not
overcome.
(5) The decision to overturn the decision of the regional office need
not be based on the relative weight of the evidence but can be based
on its error in limiting its inquiry regarding aggravation to diseases
of pathological development. The statute places no such limitation
on the nature or character of tho elements causing aggravation of a
preexisting condition. If the aggravation was caused by the inability
to obtain a proper diet and/or the nervous tension of Army life, it
would have been sufficient to meet the terms of section 310 entitling
the claimant to disability compensation as a result of aggravation of
a preexisting condition.
JUDGMENT
In accordance with tho foregoing findings of fact and conclusions of
law, it is ordered, adjudged, and decreed that tho veteran's service
connection for duodenal ulcer be restored.
CASH N O . 7
IBSOE
Restoration of service connection for psychoneurosis, mixed type,
and residuals of fracture of the necks of both femurs.
FINDINQB OP PACT
(1) No notation of nervous disorder was made at the time of the
claimant's induction examination.
(2) On October 7, 1943, ho was admitted to a service hospital be-
cause of undesirable behavior and the diagnosis was a psychoneurotic
condition—moderate psychasthenia. The notation was made that
this condition existed prior to enlistment.
(3) He was again admitted to the hospital on December 7, 1943,
complaining that his mind was cloudy and that he did not have con-
trol of bis mind or body. Diagnosis was the same. Ho was read-
mitted the day after his discharge on December 29, 1943, because of
his strange behavior and, at this time, was diagnosed as having a severe
case of psychasthenia. He was given a certificate of disability dis-
charge.
(4) T h e Board finds that claimant's condition existed well before
his enlistment. According to a clinical history obtained at a VA
examination in June 1945, a change in his personality was noticed at
8 or 9 years of age. A Texas mental institution records reveal that
the claimant was admitted on February 7, 1940, and discharged June
12, 1940. Their diagnosis was psychoneurosis, psychasthenia, or
compulsive state; schizophrenia, heoephrenic. The VA history above
referred to indicates t h a t while he was improved a t the time t h a t he
left tho Texas hospital he had slipped back within 1 year to his former
state.
(5) On June 28, 1944, the claimant was granted a service connection
for psychoneurosis.
(6) T h e VA medical records show that his condition steadily
deteriorated. In March 1948 he was characterized as incompetent.
(7) From March 4,1948, through August 29,1950, the claimant was
a patient in VA hospitals in Florida and Tennessee. A July 1948
X-ray revealed a defini te recent complete fracture involving tho neck
of each femur. This was considered to havo been incurred during
treatment and, pursuant to 38 U.S.C. 351, service connection was
granted on December 8, 1948.
 (8) I t was proposed that service connection be severed for psycho-
neurosis as involving clear and unmistakable error and for the femur
fractures on the basiB that the requirements set forth in section 351
were not met. On January 11, 1960, servico connection was severed.
(9) Appeal was taken to the regional office which upheld the sever-
ance on the grounds that there was no combat, trauma, Biiperimppsed
disease, or other incident during service to show aggravation. From
this ruling appeal is taken to this Board.
CONCLUSIONS OP LAW
(1) The claimant is a veteran of active military service during a
period of war and was honorably discharged within the meaning of
38 U.S.C. 101.
(2) Consequently, ho becomes entitled, under section 310, to com-
pensation for disability resulting from injury suffered or disease con-
tracted in the line of duty or for service aggravation of a preexisting
injury or disease.
(3) Despite the fact that the nervous condition was not noted at
the time of induction, the evidence is clear and unmistakable t h a t the
condition existed prior to service. Any compensable claim, therefore,
depends on whether this condition was aggravated by service. Once
an increase in the severity of a preexisting condition is established,
then sections 311 and 353 require clear and unmistakable evidence
t h a t this was not the product of the service before service connection
can be severed and the veteran is not required to show that it was the
result of combat, trauma, etc., in order to receive compensation.
From all the evidence of record, the Board is satisfied that thero was
an increase in severity during the veteran's service. However, it is
not satisfied that the evidence is so clear and unmistakable that there
was no servico aggravation as to permit severance of the service
connection for psychoncurosis.
The Board concludes that it was an error to sever the connection
for tho residuals of fracture of the femurs. The evidence shows
clearly that this injury occurred while tho veteran was undergoing
treatment in a VA hospital. The criteria of section 351 granting
compensation under such circumstances in the same manner as if the
injury were service connected are mot.
JUDGMENT
In accordance with the foregoing findings of fact and conclusions
of law it is ordered, adjudged, and decreed that the Bervico connection
for both conditions bo restored,
C A B E No. 8 arteriosclerosis and other disabilities, described below. A Voterans'
This is an appeal from a decision of the regional office denying war-
time service connection for an arteriosclerotic heart disease. By
amendment tho veteran also appeals from t h a t p a n of an initial
determination which denied service connection for myositis of the
right trapezius, arthritis of the cervical spine, shortening of the right
leg, defective hearing, and inguinal hernia. The issues for decision
are: (1) Whether servico connection should be granted for thoso
conditions stated in the amendment to the appeal; (2) whether service
connection on a wartime basis, instead of a peacetime basis, should be
granted for arteriosclerosis.
FINPINQB OP FACT
After consideration of all the evidence of record, I hereby make tho
following findings of fact:
The veteran served a total of 21 years in military service from
September 1935 to January 1946 and from March 1949 to December
1959. Only the material facts in his lengthy medical record during
this period are set forth here.
The veteran's induction examination in September 1935 revealed
no infirmities. His discharge examination on January 11, 1946,
showed that the veteran's blood pressure on that dato was 150/100.
After 3 years as a civilian, the veteran returned to military service on
March 21, 1949; his blood pressure on that date was 138/86. His
next examination was made in June 1950 when his blood pressure was
130/80. On two occasions in 1953 the veteran was excused from duty
and prolonged standing and marching; tho reason for this action is
not given.
On October 3, 1956, the veteran was treated for a pain in his neck,
which ho stated had bothered him for 2 years. X-rays of his cervical
spine were negative.
The medical report on April 20, 1957, reveals t h a t tho veteran was
suffering from myositis of the right trapezius with no evidence of
cervical root syndrome. The same condition was found in another
examination of April 26, 1957.
A small hiatus hernia was diagnosed in M a y 1957. In September
of tho same year, the veteran was treated for pain in his left testicle.
On M a y 8, 1958, it was reported that tho veteran had fallen from
a truck. However, thero is no evidence concerning any injuries sus-
tained in the fall.
Then, early in 1959, or possibly the latter part of 1958, tho veteran
began suffering pains in his chest. Tho veteran's blood pressuro on
M a y 13, 1959, was 122/78. Then on M a y 25, 1959, ho was given a
thorough examination. His condition was diagnosed as an arterio-
sclerotic heart disease with angina pectoris. Tho veteran's profile was
changed, permanently precluding physical cfTort. On Juno 21, 1959,
his blood pressuro was 144/90.
The veteran was discharged from military service on December 15,
1959. His separation examination stated that tho veteran was
suffering from arteriosclerosis with an approximate date of origin in
1958.
After his discharge tho veteran filed a service-conncctioi. claim for
Administration examination on May 18, 1960, revealed tho following
findings: (1) Arteriosclerosis not found on that dato; (2) myositis of
the right trapezius; (3) right inguinal hernia; (4) defectivo hearing;
(5) 1-inch shortening of tho right log; (6) minimal arthritis in tho cervi-
cal spine.
On the basis of this examination, peacetime service connection was
granted for the veteran's arteriosclerosis, and service connection was
denied for myositis, inguinal hernia, shortening of tho right leg,
defectivo hearing, and arthritis of the cervical spine. Tho regional
office in its initial review determined that wartime service connection
for the veteran's heart condition was not warranted.
The veteran appeals from that portion of the decision denying
wartime sorvico connection for arteriosclerosis, and by amendment,
appeals from the decision denying service connection the other dis-
abilities mentioned above.
OPINION
The primary issues for decision are: (1) Whether service connection,
either on a wartime or peacetime basis, should be granted for the
veteran's disabilities stated in the amendment to the appeal, namely
myositis, arthritis, shortening of the right leg, defective hearing, and
inguinal hernia; (2) whether service connection on a wartime basis,
instead of a peacetime basis, should be granted for the veteran's
arteriosclerosis. Since the issues here vary as to the type of service
connection requested, the issues will be considered separately in the
order in which the veteran presents them in his comment.
(1) Service connection for the disabilities in the amendment to the
appeal: Although the veteran did not obtain an initial review of the
disabilities in the amended appeal by the regional office, an initial
determination was mode by the rating board in the regional office.
Therefore, I have authority to review the decision of the rating board's
initial determination as provided in 38 U.S.C. 4005(a).
The rating board denied service connection for myositis, arthritis,
shortening of the right leg, defective hearing, and inguinal hernia;
the reason for the denial is not stated in the evidence. The veteran
contends, generally, t h a t service connection, either wartime or peace-
time, should be granted for all of those disabilities.
The veteran is presumed to have been in sound condition when ho
entered military servicoin September 1935, in March 1949, and a^ain
in June 1950.' There is no evidence to rebut this presumption.
Thus, whether the veteran is entitled to servico connection for the
above disabilities depends upon whether the disabilities were incurred
in the line of duty. 8 In defining "line of duty," 38 U.S.C. 105(a)
provides—
An injury or disease incurred during active military • • * Bervice will be
deemed to haye been incurred in line of duty and not tho result of the veteran's
own misconduct when the person on whose account benefits o»ro claimed was, at
the time the injury was suffered or disease contracted, in active military * * *
service * * * unless such injury or disease was the result of his own willful
misconduct.
The ovidenco clearly establishes that the veteran was in active service
when he contracted myositis of the trapezius and arthritis in the
cervical spine. On October 3, 1956, the veteran complained of a
pain in his neck, which he stated had bothered him for 2 years.
Although there was at that time no finding of arthritis in the cervical
1 the first findings of arteriosclerosis were not made until May 1959,
38 U.8.0.333. PrttumtMlon ofiound condition.—For the purposes of section 331 ot this title, every person
employed In the active military • • * sorvloa for six months or more shall b« taken to have been In sound
condition when examined * * for service, except as W defects, infirmities, or disorders noted at the time
ot the examination * * * or where evidence or medical Judgment Is such as to warrant & Ondlns that th e
disease or Injury existed before acceptance * • *.
* 18 U.S.C. S31. Basic mtill(mtnt.-~For disability resulting- from personal Injury suffered or disease con-
tracted In line of duty, ortoraggravation ol a preeilstlni Injury suffered or disease contracted In Una of duty,
In the active military ' • • service, during other than a period of war. the United Stales will pay to any
veteran thus disabled and who was discharged or released under conditions other than dishonorable from
the period of service In which such Injury or dUease was Incurred, or preexisting injury or disease was artra-
vat&d, compensation *s provided In this subchapter, but no compensation shall be paid If the disability Is
the result of the veteran's own willful misconduct.
spine, the report does establish t h a t the pain in the veteran's neck
was contracted while he was on active duty and that the veteran
received treatment for the pain. Similarly, on April 20, 1957, it was
noted in the veteran's medical report that he was suffering from
myositis of the trapezius, and tho same condition was found in a
subsequent examination on April 26, 1957. Both of these conditions
were found in the Veterans' Administration examination on May 18,
1960. Since both of these disabilities were contracted while tho
veteran was in active military service during a period other than war,
there being no evidence that the disabilities were incurred prior to
December 3 1 , 1946, they are deemed to have been incurred in the
line of duty. There is no evidence that these disabilities were tho
result of the veteran's own willful misconduct. The rating board,
therefore, erroneously denied service connection on a peacetime basis
for myositis and arthritis of the cervical spine.
However, there is no evidence to establish t h a t the shortening of
the right leg, dofectivo hearing, and inguinal hernia were contracted
while the veteran was in active military service. The veteran has
made no a t t e m p t to relate the shortening of his right leg with the
fall which he sustained on May 8, 1958; nor has he made an attempt
to relate his inguinal hernia to the pain in his left testicle, reported
in September 1957. There is, therefore, no basis upon which service
connection could be granted for these conditions.
The veteran argues that since he was in military service for 21
years with no evidence of any interim disease or disability to cause
the condition in his right leg, defective hearing, and tho inguinal
hernia, those disabilities m u s t have been incurred during military
service. He states that this is especially truo since all three of these
disabilities were found in the Veterans Administration examination
5 months after his discharge. I t is sufficient to state, in answer to
this argument, that the Veterans' Administration is bound by the clear
mandate of 38 U.S.C. 333, which provides t h a t only those diseases,
tropical in nature, which appear within 1 year after discharge, will
be deemed to have been incurred in military servico. No presump-
tive period is created for other diseases and, as mentioned above,
there is no evidnece that these disabilities were incurred during a
period of war.
I conclude, therefore, that service connection should have been
granted for only the following disabilities: (1) Myositis of the tra-
pezius and (2) arthritis in the cervical spine.
(2) Wartime service connection for arteriosclerosis; Tho regional
office determined that the evidence does not establish that the veteran's
heart condition w&s incurred during a period of war, since the only
evideneeof a heart condition was a high blood pressure reading of
150/100 in January 1946. The regional office concluded that sinco
wartime service connection, being too remote from the last mentioned
date, is unwarranted. The veteran argues, on the other hand, that
because a high blood pressure reading was made in January 1946, and
because subsequent readings have been in the high normal, there is
an indication t h a t the veteran's heart condition began in January
1946. He contends that this continuity of high blood pressure
readings finally resulted in arteriosclerosis, as diagnosed in M a y 1959.
 Wartime service connection is available only for those diseases
which wore incurred during a period of war.* The evidence does not
establish that the veteran's arteriosclerotic condition was incurred
during the Second World War, defined in 38 U.S.C 101(8) as the
period beginning on December 7, 1941, and ending on December 31,
1946. First, although the veteran's blood pressure was abnormally
high, with a reading of 150/100 in January 1946, it is an indisputable
fact * that high blood pressure is indicative of moro health problems
than arteriosclerosis. Thus, overweight may cause an increase in
blood pressuro, and blood pressure will tend to become normal with
control of weight.* Second, contrary to the argument of the veteran',
examinations subsequent to the examination in January 1946 show a
return of tho veterans blood pressuro to a normal level. Assuming tho
veteran to be 40 years of age in 1949, his normal blood pressure should
be 125/83. The veterans blood pressure in March 1949 was 138/86.
On the last mentioned date, tho veteran's systolic blood pressure was
only 3 millimeters higher than what is considered normal; his diastolic
blood pressure, which IB considered more significant than the systolic,
was normal, In June 1950 the veteran's blood pressure was 130/80,
which is normal, On May 13, 1959, the veteran's blood pressure
was 122/78. On this date the diastolic blood pressure was only 2
millimeters below normal. Thus, the variations noted in the examina-
tions, subsequent to tho examination of January 1956, do not indicate
a disease.
Third, it is significant that the diagnosis of the veteran's condition
as arteriosclerosis on May 25, 1959, was made upon other factors,
such as the veteran's suffering from angina pectoris. On tho basis of
the time that the veteran began suffering from angina, the discharge
examination approximated the date of origin of the heart condition
in 1958.
In view of the foregoing, evidence of a high blood pressure reading
upon January 11, 1940, when tho veteran was not diagnosed as having
a heart condition until May 25, 1959, does not establish that the
veteran incurred a heart condition in January 1046 or any time prior
to December 31, 1946. I conclude, therefore, that wartime service
connection should not be granted for arteriosclerosis.
CONCLUSIONS OP LAW
After consideration of all tho evidence, and in view of the foregoing
opinion, I hereby make the following conclusions of law:
(1) That I have jurisdiction to consider tho amendment to the
appeal and the errors of law assigned therein, and that the veteran
was discharged under conditions other than dishonorable.
' SS U.S.C, 310. BaiU ntltltmtw.—For disability- remittal tram personal Injury suffered or disease con-
tracted In line of duly, or lor acnuvatfon of o preciltUn*: injury suffered or discus contracted In line ol duty.
In the ocUro military ' * ' servfc*. during a period of war, (he United States will pay to any veteran thai
disabled and who was discharged or released under conditions other than dishonorable from the period ol
service to which old Injury or disease was Incurred, or precxliUm Injury or disease was aggravated, com*
pcnsnltoa u provided in this cabebspUr, but DO compensation that] be paid if the disability Is the result ot
the veteran'! own willful misconduct
• On official notice of extra-record tacts, see 3 Davis. Administrative Law Treatise, sec in.0S (IBM).
t See 3 Oray. Attorneys' Text Book of Medicine, tee, 157.37 (i960), which contains a table Of •yitollo and
diastolic blood pressuro averages, together with normal limits and dancer levels. This reference is the basil
for the follotrtnj disocssloii in this paragraph.
(2) That the veteran was in sound condition when he entered tho
service in September 1935, March 1949, and Juno 1950.
(3) That the disabilities of myositis of the right trapezius and
arthritis of the cervical spine wore incurred in the line of duty during
military service, and that servico connection on a peacetime basis
should be granted for those disabilities.
(4) That the following conditions, shortening of the right leg, de-
fective hearing, and inguinal hernia, were not incurred in the line of
duty during military service, and that there is no presumptive period
for those conditions.
(5) That the evidence does not establish that tho veteran contracted
arteriosclerosis during a period of war, and that, therefore, tho veteran
is not entitled to wartime service connection of his arteriosclerotic
condition.
CASE NO. 8
IBBUE
Service connection for heart disease on a wartime basis: The repre*
sentativo of claimant has asked that tho appeal be amended to incuide
the question of servico connection for myositis, arthritis of the cervical
spine, shortening of the right leg, defective hearing, and inguinal
hernia.
FINDINGS OF PACT
(1) Claimant veteran has about 21 years of activo servico, from
1935-to 1946, and 1949 to 1959. His examination upon induction in
1935 and again in 1949 and 1950 reveals no recorded evidence of pre-
existing disabilities here in question. Veteran was discharged in
December 1959 for arteriosclerotic heart disease.
(2) At tho time of bis discharge in 1946, examination of the veteran
revealed hypertension, with a blood pressure reading of 150/100.
Subsequent readings, however, showed normal or only high normal
results: March 21, 1949, 138/80, and Juno 10, 1950, 130/80.
(3) Veteran was treated in 1956 for a recurring pain in his neck, but
the medical record bears notation: "X-ray cervical Bpino negative."
(4) In 1957 examination revealed the veteran had trapezius myo-
sitis, but apparently with no evidence of cervical root syndrome.
(5) In 1958 or thereafter veteran suffered from chest pains. These
were diagnosed in 1959 as arteriosclerotic heart disease manifested by
angina pectoris and angina decubitis. Although arteriosclerosis was
the basis for his discharge from service in 1959, tho final examination
shown on the veteran's military medical records also reflects Q. finding
of hernia, diaphragmatic.
(6) VA examination subsequent to discharge showed all conditions
resent which ore here in issue except diaphragmatic hernia, as of
5 fay IS, 1860, or 5 or 6 months after discharge. An inguinal hernia
was also revealed.
(7) On' August 12, 1960, service connection was granted on a peace-
time basis for arteriosclerosis (together with service connection on a
wartime basis for a finger injury suffered in 1944, but not here in
issue).
 CONCLUSIONS OP LAW
(1) The principal question involved is whether the service connec-
tion for arteriosclerotic heart disease should be on a wartime or a
peacetime basis. The finding of hypertension on discharge of the
veteran in 1946, standing alone, would furnish sufficient evidence of
the onset of this condition to justify application of a presumption of
wartime service connection under 38 U.S.C. 311, 353. This evidence,
however, was rebutted b y examinations showing normal blood pressure
in 1949 and 1950. I t is true, and an accepted general medical prin-
ciple, as the veteran's representative points out, that arteriosclerosis
usually develops over a long period of time. This principle is given
statutory recognition by the listing of arteriosclerosis as a chronic
disease, subject to a presumption of service connection on a wartime
basis if it is manifested within 1 year after discharge (38 U.S.C.
301(3), 312). But the remote manifestation of the condition in this
case would not justify service connection on a wartime basis even if
these statutes were taken to be applicable, and the award of service
connection on a peacetime basis was therefore proper.
(2) Although myositis trapezius was not noted on the military
medical records of the veteran at discharge, this condition had been
found to exist prior to discharge in an examination on April 20, 1957,
and it was noted again in the VA examination following within 6
months after discbarge. Since no such condition was noted at the
time of the veteran's induction in 1949 or 1950, service connection
for myositis trapezius must be conceded (38 U.S.C. 332).
(3) Defective hearing and inguinal hernia were also noted in the
VA examination following discharge; they were not found in the dis-
charge examination nor was veteran treated for these conditions
during service. Service connection for these conditions was there-
fore properly refused because no factual or statutory presumption
arises. Since both of these conditions can and may develop over a
short period of time, as a result of trauma or otherwise, no presump-
tion of service connection arises on the basis of accepted medical
principles.
(4) With respect to the arthritic condition, however, which was
also first detected in the VA examination after discharge, a factual
presumption of service connection arises on the basis of accepted
medical principles. This condition could not be expected to originate
in the period Detwcen discharge and the VA examination. To the
extent that the veteran's representative is correct in stating that the
VA has absolutely refused to apply any presumptions of service con-
nection on a peacetime basis, where the condition is manifested after
discharge (except tropical diseases), the VA has acted incorrectly
and not in compliance with the statute. Whenever sound judgment
suggests the service connection of a later manifested condition, the
statute reflects a clear policy in favor of findings of service connection
(38 U.S.C. 333(c)). Accepted medical principles must be taken to be
included within the statutory reference to "sound judgment."
(5) Service connection on a wartime basis was therefore properly
denied for the veteran's arteriosclerotic heart disease. I t was also
proper to deny service connection for defective hearing and inguinal
hernia. With respect to myositis trapezius and arthritis of the
cervical spine, shortening of the right log, however, denial of service
connection was erroneous, and such service connection should bo
allowed. The award of service connection for arteriosclerotic heart
disease, on a peacetime basis, should be affirmed.
CASE N O . 9
This is an appeal from a decision of the regional office, denying the
claimant a pension for the non-service-connected death of his wife,
a veteran. The sole issue for decision is whether the claimant was,
within the meaning of 38 U.S.C. 102(b)(2), incapable of self-mainte-
nance- and was permanently incapable of self-support due to physical
or mental disability at the time of his wife's death.
FINDINGS OF FACT
On the basis of all the ovidenco of record, and after consideration of
the accredited representative's comment on the evidence, I hereby
make the following findings of fact:
The claimant's wife was a veteran of the First World War, having
entered active duty on M a y 31, 1918, and having been released on
July 19, 1919, with an honorable discharge on Soptember 8, 1920.
The claimant and his wife operated a franchise grocery store until
her death on August 4, 1952. In 1947, tho claimant underwent an
oporation for transurethral resection with a normal recovery. Then,
according to his physician, Dr. Jones, tho claimant became- ill with
arteriosclerosis and diabetes mellitus in 1949, and consequently, was
able to do only a minimum of work in the grocery store. A former
employee of the claimant, Frank Fuller, stated in his deposition that
after 1946 or 1947, tho claimant was unable to work and that the
claimant's wife operated tho storo until her death. A similar state-
ment was made b y Ida Veazey, an acquaintance of tho claimant and
his deceased wife.
When the claimant's wife died on August 4, 1952, ho continued to
operate the grocery store and hired Helen Seville to do tho work
which his wife had previously done. In his deposition Dr. Jones
stated that at the time of his wife's death, tho veteran was completely
dependent upon her for maintenance and support, but that ho never-
theless attempted to operate the store. The physician also stated
that because the claimant was suffering from pain and dyBpnea, he
had to remain seated behind the counter, sometimes leaving the
customers to serve themselves. Helen Bevillc, the employee hired
by the claimant, stated that ho did very little work while sho worked
for him, except that he sat behind tho counter in the store; sho further
stated that the claimant kept the books and opened the store in the
morning, b u t would often return to his home. The only testimony
which varies from the statements of Dr. Jones and Helen Bevillc is
t h a t of Mr. Fuller, who stated that the claimant, after his wife's
death, did some of the butchering; however, Mr. Fuller stated that
he visited the claimant only two or three times after his wife died.
In the claimant's deposition he stated that he sold the store in
1955, and that prior to the sale had worked a "little bit" around the
store.
 On September 25,1958, the claimantfileda claim with the Veterans'
Administration for a pension for the non-service-connected death of
his wife. In answer to a letter from the Veterans' Administration,
requesting evidence that the veteran was incapable of self-support
and self-maintenance at the time of his wife's death, Dr. Jones stated
that after his wife's death, the claimant had to continue operation of
the store, but collapsed, and that he is a complete invalid and has been
unemployed sinco the death of his wife. Other information submitted
in depositions by Dr. Jones is Btated above.
On October 0, 1959, the claimant was examined by Veterans'
Administration physicians. It was noted in this examination that
the veteran had a history of gradually increasing disability due to
advancing arteriosclerosis, diabetes mellitis, and several other diffi-
culties, including a coronary heart condition, arthritis, and enlarged
prostate.
After several field examinations and reconsideration of a prior
docision, tho regional office on September 26, I960, determined that
the claimant was not incapable of Bclf-support when his wife died,
and therefore, denied the claim for a pension.
On January 16, 1961, the claimant brought this appeal from the
decision of tho regional office.
OPINION
The solo issue for determination in this case is whether the claimant,
at tho time of his wife's death on August 4, 1952, was incapable of
self-maintenance ond permanently incapable of self-support duo to
physical or mental disability. "The regional office determined that
tho evidence docs not show that the claimant was incapable of self-
support and self-maintenance at the time of his wife's death. The
claimant, on tho other hand, argues that when all the evidence is
considered, it should bo held that he has met the requirements for a
pension or dependency and indemnity compensation. Ho also con-
tends that the statement of tho case for appellate review by tho rating
board is not a complete representation of tho evidence on file; in view
of tho decision which is reached in this case, it is unnecessary to con-
sider this contention of the claimant. I turn, then, to the issue for
decision.
Tho widow of a veteran of the First World War is entitled to a
pension, if the veteran met tho service requirements of 38 U.S.C. 521.'
As tho claimant points out, his wife was in active military service
from May 31, 1918, to July 19, 1919, and thus, tho requirements of
the above statute are met. Or, in the alternative, the widow of a
veteran, dying prior to January 1, 1957, is entitled to dependency and
indemnity compensation. However, since the claimant for a pension
or dependency and indemnity compensation is a widower, additional
requirements muBt be met by him; 38 U.S.C. 102(b)(2) provides—
(b) For tho purposes of this titlo • * * (2) the terra "widow" includes the
widower of any female veteran if such widower is incapable of self-maintenance
and in permanently Incapable of self-support due to physical or mental disability
at the time of the veteran's death.
i S3 U.fl.C. 031. VtUrwit «f (VorM War / • ' • (fl A vturan meaU tb« ferries nwalremtnta oi tbti
section U bo wired in tha active military * * * terries—(i) far 00 dny» or mom durina World War
' Sea SS V.9.Q. 410.
The evidence clearly establishes that the claimant's physical disabil-
ities, described in the Veterans' Administration examination on
October 6, 1959, are permanent. The only question is whether the
veteran was permanently incapable of self-support and self-mainte-
nance on the date of his wife's death, August 4, 1952.
I am of the opinion that the evidence does establish that the claim-
ant was incapable of self-maintenance and support permanently at
tho time of his wife's death. Dr. Jones, in several depositions, all of
which are consistent, stated that the claimant's illness began in 1949
and that at the time of his wife's death, the claimant was wholly de-
pendent upon her for maintenance and support. Both Frank Fuller
and Ida Veazey stated that after 1946 the claimant was not able to
work and that the veteran operated tho store until her death.
The difficulty with the claimant's caso is that after his wife's death,
he continued to run the business for approximately 3 years, until 1955,
while he now claims that he was permanently incapable of self-support
on his wife's death in August 1952. The evidence, however, estab-
lishes that the veteran was physically incapahlo of running the
business, and for that reason, his attempt to operate the business
failed. In his comment to the statement of tho case, tho claimant
states that Dr. Jones advised him to sell his business or closo it, and
that tho physician said that the claimant was unable to run tho
business. TniB statement of the claimant is corroborated by evidonco
in the official statement of the case. In all of his depositions Dr.
Jones stated that the claimant was only attempting to operate the
grocery store, and on April 6, 1959, stated that the claimant had to
continue operation of the store, but collapsed. The claimant's
employee, Helen Belville, testified in her deposition that tho claimant
only sat behind the counter in the storo, keeping his books and writing
checks, and opened the store in tho morning, often returning home
thereafter. Also, tho claimant states that the profits from tho business
were not sufficient to pay an employee to substantiate his claim that
he was totally dependent upon his wife. This evidence, takon as a
whole, reasonably supports a finding that tho claimant continued
operation of his grocery store after his wife's doath to support him-
self, when he was physically incapable of running the business bocauBQ
of an illness which commenced in 1949.
, It is significant that tho claimant apparently made no profit or even
a return of capital from tho solo of tho grocery storo, since ho states in
his comment that he has no property or money, other than welfare
and social security benefits, and states that ho has been incapablo of
support since his wife's death. Also, tho fact that the claimant was
able to do some work, such as writing checks and keeping his own
books, does not mean that he would have been able to support himself
in whole or in port. It is behoved that 38 U.S.C. 102(b)(2) does not
require that the claimant be incapable of keeping his own affairs in
order to receive a pension or other benefit.
In view of the foregoing, I conclude that the evidence establishes
that the claimant was permanently incapable of self-support and self-
maintenance on the date of his wife'B death, and that tho claimant
should not bo barred from a pension or other benefit because ho at-
tempted to support himself, when he was physically incapahlo of
doing so.
 CONCISIONS OP LAW
After consideration of all the evidence of record, and in view of the
foregoing opinion, I make the following conclusions of law: '•
(1) That the claimant's wile was honorably discharged from mili-
tary service and met the requirements of 38 U.S.C. 521.
(2) That the claimant is a widower, and that the time of his wife'B
death, he was incapable of self-maintenance and was permanently in-
capable of self-support due to physical disability.
(3) That during the period after his wife's death when he operated
his grocery store, the claimant was incapable of self-maintenance and
w&a permanently incapable of self-support due to his physical con-
dition.
(4) That the claimant should be granted a pension for the non-
service-connected death of his wife, a veteran, or, in the alternative,
dependency and indemnity compensation.
CASE No. 10
ISSUE
Restoration of service connection for thrombophlebitis of the left
leg.
FINDINGS OF PACT
(1) The claimant's induction examination did not note thrombo-
phlebitis of the left leg. It did note varicosities of the abdomen,
together with an appendectomy scar.
(2) He was admitted to a station hospital on March 19, 1943 (ap-
proximately 9 months after induction) following an examination for
oversea service with a diagnosis of chronic thrombophlebitis of the
left leg and severe case of abdominal varicosities.
(3) On April 27, 1943, he was given a CDD. The service depart-
ment held that the conditions existed prior to service and not aggra-
vated by such service*.
(4) In April 1945, on the initial VA physical examination, the
claimant gave a-history of having developed phlebitis after an appen-
dectomy. He complained of swelling in the left leg after standing or
walking for 1 to 2 hours. In a letter submitted with his claim for
compensation on the basis of aggravation of varicose veins of the
abdomen, his personal physician stated that he had had an appendec-
tomy performed prior to service, which was complicated by pnlebitis
of the lower extremity. The Board finds that this constitutes clear
and unmistakable evidence that the condition of the left leg existed
prior to service.
(5) On May 3, 1945, service connection by way of aggravation was
granted for thrombophlebitis of the left leg.
(6) On July 11, 1960, the claimant received a letter advising him of
the proposal to sever the service connection on the basis that the con-
dition existed for a number of years prior to service and was a part of
and a residual of an appendectomy.
(7) When the claimant did not submit additional evidence to sup-
port his claim that the thrombophlebitis of the left leg was aggravated
by his service, action was taken on September 28, 1960, severing his
connection.
(8) The regional office held that the evidence of record did not
substantiate his claim that service connection should be restored.
From this ruling appeal is taken to the Board.
COHCLUBIONS OF LAW
(1) The claimant is a veteran of active military service during a
period of war and was honorably discharge within the meaning of
38 U.S.C. 101.
(2) Consequently, he becomes entitled under Bection 310, to com-
pensation for disobility resulting from injury suffered or disease
contracted^ in the line of duty or for service aggravation of a pre-
existing injury or disease.
(3) The existence of the condition of the left leg was not noted at
the time of the induction physical examination. However, the Board
concludes that the presumption of sound condition existing under
section 311 as to all defects and disorders not noted at the time of
induction, is overcome by clear and unmistakable evidence that
thrombophlebitis of the left leg preexisted the veteran's service.
(4) There is ample evidence of record that, whereas the veteran's
condition existed prior to service, the condition became so severe
between the induction examination and examination for oversea
duty so as to preclude him from such duty. Inasmuch as service
connection was granted on the basis of aggravation, severance of this
connection without a rinding that it was based on a clear and un-
mistakable error is clearly violative of the provisions of section 311.
Furthermore, a grant of service connection on the basis of aggravation
implicitly determines that an increase in severity existed and severance
of the service connection without a specific finding that the increase
in disability was due to the natural progress of the disease is patently
violative of section 353.
(5) Requiring the veteran to produce further evidence of service
aggravation in order that his service connection not be severed, and
thereby shifting the burden of proof to him, is violative of both the
Bpirit and the letter of sections 311 and 353.
JUDGMENT
In accordance with the foregoing findings of fact and conclusions of
law, it is ordered, adjudged, and decreed that the veteran's service
connection for thrombophlebitis of the left leg be restored. Moreover,
it is directed that the veteran's claim for service connection based on
aggravation of his abdominal varicosities be reexamined in light of
this opinion.
LAW STUDENTS COMMENTS ON THE ADJUDICATION SYSTEM OP
THE VETERANS' ADMINISTRATION
In taking advantage of your Invitation to make additional comments on the,
general subject, I should like first of all to assure you of my complete sympathy
with the principal views and objectives set out in your letter, and more specifically
in House Report 2031 (86th Cong., 2d sess.). However well meaning the admin-
istrative personnel of the VA may be, the removal of this area of decision making
from judicial review is pregnant with inherent dangers. Not the least of these
is the absence of recorded precedent to serve as a guldepost to subsequent decision,
for without a considerable degree of uniformity in result on like facta, decisions
in this area will unavoidably be viewed as arbitrary and unfair. I dissent most
strongly from the view of the Administrator that decisions involved in these
appeals ore merely "factual determinations." I t is certainly true t h a t factual
determinations must bo mado from tho evidence, n o t only with respect t o per-
centages of disability b u t in many other ways as well. B u t tho legal effect t o
be given the facts when found is not only independent of those facts b u t crucial
t o tho result. 80, for example, in cases where the issue involves service connec-
tion, a finding of service connection is not a factual finding b u t a legal conclusion
which may or may not follow from certain facta. Moreover, the findings of fact
ore themselves so often dependent on legal presumptions, t h a t a lack of uni-
formity in the application of these presumptions must necessarily result In lack
of uniformity in tho decisions.
You wiii note from t h e conclusions of law submitted herewith t h a t I have had
recourse to tbe regulations promulgated by the Administrator, as they are re-
flected in the Code of Federal Regulations. I fear t h a t I must t a k e issue with
t h e statement In y o u r letter of M a y 25 t h a t "Title 38, United States Codo con-
tains all the laws administered by the Veterans' Administration dealing with the
benefits applied for in these six cases." [Emphasis yours). While this statement
may bo technically correct, the regulations issued b y the Administrator under
tho authority of 38 U.S.G. 210 have tho force of law t o t h e extent they are not
inconsistent with tho statute. As such these regulations must be given legal
effect in those coses where they make more specific t h e general guides furnished
b y t h e statute, a n d where they choose between alternative interpretations of
ambiguous portions of tho statute. I found, as you must already know, t h a t
these regulations are highly disorganised, unduly complex, and badly in need of
thorough overhaul.
One other matter worth mentioning relates t o tbe evaluation of t h e medical
evidence in these cases. Since notations on medical records, perhaps especially
on military medical records, tend to be cryptic, it is apparent t h a t any reviewer
of these kinds of cases m u s t either be personally familiar with a large number
of medical terms and methods of medical evaluation or he must have ready
access t o some clear source of information a b o u t them. H e must also have
access to some reservoir of tho "generally accepted medical principles" which
play so prominent a roie in many of these cases. For my own p a r t I had Informal
recourse t o the medical authorities hero a t tho university for assistance with the
resolution of several ot these problems. Perhaps tbe other people you have asked
t o review the pilot project cases hove been personally equipped t o grapple with
these problems better than I . 1 would suggest, however, t h a t if it has n o t already
done so, your committee might And it interesting t o s t u d y tho sources of medical
advice or authority used by tbe various administrative organs of the VA. While
tho regulations referred to abovo contain some such references, the material
offered there Is only fragmentary. Obviously any serious gap in the information
of this nature which is available to the various organs of the VA may also play
h o b with uniformity of decision.
I havo enjoyed this brief exposure t o the important work of your committee,
and I appreciate this opportunity t o make a minor contribution to its current
project.
As you requested, I tried each case do novo, on the record supplied me, making
findings of fact a n a conclusions ot law. in much tho same manner as a trial ex-
aminer for tho N L R B would. After a little research, I noted t h a t for most of tho
statutes with which I was working, there were no precedents a s t o their interpreta-
tion. My interpretations were therefore based on a tabula rosa>
I should like t o note t h a t section 311, with its cross-reference by way of defini-
tion to section 353, is most troublesome. Section 311 can be interpreted a
variety of ways, and oven after consulting t h e committee report in tho Senate of
1043, It is not completely clear to me why tho words "and was not aggravated"
was appended to the end of t h a t section. However, I gave the statute the con-
struction t h a t seemed t o me t o be the most Bound, considering ita precipe language.
I found this to be extremely interesting and I havo the following general com-
menta to make which may bo of some help to the committee. I was plagued
throughout in my efforts by the fact that, in most coses, tbe basis upon which tho
regional offices predicated their decisions was a matter of conjecture. Their
decisions on review, in most instances, were cryptic a t best and in most instances
purely concluaory. As you will note, most of my cases revolved around the issue
of aggravation of preexisting conditions. There was no indication of factfinding
on tno question of increased severity and consequently no Bectlon 353 determina-
tion. In very few cases were there any indications of w h a t facts wero found t o
be significant. Thus, with trusty Borland's Medical Dictionary in hand, togother
with tho help of a patient physician friend, I had t o sift tho medical evidence
myself to arrive a t m y findings of fact. Also, section 311 impressed mo as being
a draftman's monument to confusion. The regulations were of considerabio
help here b u t unhappily, only nfter I had wasted considerable time on the codo.
For these reasons you will nolo t h a t I rather prosumptuouflly overturned, fit
least in part, 9 of 10 of tho regional offices' decisions. T h e main general reason
t b a t I was prompted to do this was because it seemed t h a t the veterans weren't
being accorded t h e presumptions t h a t they were entitled to. Tho language of
t h e decisions, alone, made this interpretation possible, since, because of their
terseness, one could nover tell what presumptions or evidence was operative.
1. Administrative review ot veterans' cases under tho present system operates
arbitrarily and erroneously in many cases BO t h a t revision of tho system is needed.
Tho cases seemed to be decided unusually arbitrarily oven for an administrative
proceeding; rarely was the reason for any action taken by an administrative board
indicated in the record on appeal.
Jn 0 ot the 10 cases reviewed, WQ reached results different than those reached
by tho Veterans' Administration. The statutes seem t o be fair ones b u t they
ore n o t being properly applied b y the VA. One error frequently modo is t h a t
s t a t u t o r y presumptions operating in favor of the veteran ore ignored. M a n y
times tho VA will assert t h a t the veteran has failed t o prove 0 certain point when
it is clear t h a t a statutory presumption exists which relieves the voteraa of this
burden in the absence of any other evidence.
A system providing for judicial review of veterans' cases would bo on improve-
ment, b u t in tuny case tho VA's dual rolo of advocate and judge should bo termi-
nated if j u s t results are to be reached-
C O M M E N T S O F VETERANS ORGANIZATIONS
A M V E T S NATIONAL HHADQUABTEBB,
Wathington, D.C., July 19, toei.
Hon. O U N E. TBAOOE,
Chairman, CommxUtt on VtUrant' AjJoiTl,
U.S. Home of Repretentalives, Wathxnglon, D.C.
DaAn M B , T B A O U E : WO have reviewed with great interest the enclosures con-
tained in your letter of July 14, 1961, addressed t o Mr, John Holden, regarding
Judicial review.
Reviewing the three cases covered in t h e galley proofs, two points stand o u t
clearly. The law students with no prior experience of VA benefits p u t "tooth"
in sections 310 and 311 of title 3S and gave fbll credence to lay and medical
evidence submitted in support of tho claims. These two points in particular
have been the basis for much of tho criticism of the present appeal decisions.
I t is also interesting to noto t h a t in each instance tho burden of proof in severance
cases was placed upon the Government in their conclusions of law.
In comparing the "Findings of Facta" and tho "Conclusions of Law" as cited
by t h e Board of Veterans Appeals and tho law students, wo find t h a t by comparison
t h a t t h e Board of Appeals citations leave the impression t h a t only sufficient
findings and conclusions are cited to support their own decisions. On tho other
hand, tho "Findings of F a c t " and "Conclusions of L a w " cited by tho law students
leave no doubt as to the facts in tho cose, tho governing regulations, or the reason-
ing used in arriving a t their final decisions.
Assuming t h a t tho cases referred to here flro representative of tho 10 cases
studied, then we of A M V E T S foci t h a t they constitute a serious indictment of
our present system of veterans appeals, and leave considerable doubt t h a t 11.H.
806 will accomplish very much toward remedying the situation. In essence, the
"Findings of F a c t " and "Conclusions of I^aw" as contained in the Board of Vet-
erans Appeals decisions leave much to be desired as compared to tho findings and
conclusions cited by the law students. AM V15TS tccl t h a t the results of this pilot
project have created a strong argument for tho establishment of an independent
appellant tribunal,
 In closing we might add t h a t the statements of facts as prepared by the regional
offices were excellent.
Sincerely yours,
GABHBTT J. BOWMAN,
Ateistant National Legislative Director.
DISABLED AMERICAN V E T E R A N S ,
NATIONAL SERVICE HEADQUABTERS,
Washington, D.C., August 1, 1961.
Hon. OUN E. TBAQOB,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DBAR M R . T E A G U E : This has further reference to your letter dated July 14,
1961, forwarding copies of House Committee Print No. 118 for t h e consideration
of this organization and requesting our comments thereon.
Mr. Denvel Adams, DAV director of claims has advised me as follows based
upon the careful review he and his staff made of the decisions involving findings
of fact and conclusions of law you have brought to our attention:
" W i t h reference t o the copy of Mr. Teague's letter regarding tho preparation
of decisions on appeal cases, our comment is t h a t the law student in each case
apparently has rendered decisions based purely on facts and evidence contained
in the briefs; whereas, it appears to me, the VA in their decisions have relied, to
a large degree, on opinion which is not borne out by the facts in each case.
"By way of further comment, may we say t h a t we have maintained down
through the years t h a t the VA Board of Veterans' Appeals has n o t given sufficient
weight to lay affidavits in arriving at decisions on appeal cases."
I have also heard in this matter from Mr. Sylvester Hoffmann, DAV national
judge advocate, who was supplied by me with copies of your letter and print No.
118, and you will please find enclosed herewith a copy of Mr. Hoffmann's letter
dated July 25, 1961, which is self-explanatory. I concur in his conclusions.
Sincerely,
E L M E B M. FREUDENBERGER,
National Director of Legislation.
D I S A B L E D AMERICAN V E T E R A N S ,
Los Angeles, Calif., July S5, 1961.
Mr. E L M E R M. FREUDENBEBOER,
Director of Legislation,
Disabled American Veterans,
Washington, D.C.
D E A R ELMER: Experience of the judiciary and regulatory agencies, alike,
has shown t h a t the very act of making separate findings of fact and conclusions
of law is a deterrent to decisions unsupported by the evidence, and aids those
making the decision to reach a fair and just determination.
Congress has repeatedly required such separate written findings and conclu-
sions by various Federal administrative agencies. In the instance of the CAB,
for example, a court of appeals recently remanded a decision to the CAB for
further consideration where the findings (which merely followed the language
of the act) were not inadequate. A different end result followed, after adequate
findings, supported by the evidence, were adopted.
I t is true (and a situation which should be corrected) t h a t review of the decisions
of the VA Board of Veterans' Appeals by an independent court (such as a court
of veterans' appeals) is now precluded, b u t adequate, separate and complete
findings and conclusions may prove helpful in seeking action by t h a t Board
to reconsider, as is authorized by 38 U.S.C. 4003, 4004(a), by reexamining its
findings find conclusions in the light of the admitted evidence, and determining
whether they also meet the clear requirements of 38 U.S.C. 4004(c).
Adequate, realistic findings and conclusions would also aid the veterans who
file a new claim, by reason of 38 U.S.C. 4004(b), after disallowance.
The galley proofs submitted (which I r e t r m herewith), clearly illustrate t h a t
as to those prepared by the Board, it would be much more difficult to demonstrate
the fairness of reconsideration, than under the more full and specific findings and
conclusions prepared by the law students.
Kindly thank Chairman Olin E. Teague for his undeserved comment concerning.
Sincerely yours,
SYLVESTER HOFFMANN,
National Judge Advocate.
VETERANS OF F O R E I G N W A R S OF THE U N I T E D STATEB,
NATIONAL LEGISLATIVE SERVICE,
Washington, D.C, August 8, 1961.
Hon. O U N E. TEAGUE,
Chairman, House Veterans' Affairs Committee,
Old House Office Building, Washington, D.C.
D E A R M R . TEAGUE: This is in response to your letter of July 14 requesting
the views of the'Veterans of Foreign Wars with respect to the sufficiency of the
findings of fact and conclusions of law concerning certain enclosed coses.
These cases were referred to our national rehabilitation service and a copy of
its response is enclosed. I t is hoped this material will prove helpful In implement-
ing tho new Public Law requiring findings of fact and conclusions of law.
Thanking you for extending the opportunity to the Veterans of Foreign Wars
to be of assistance in this matter, I am,
Sincerely yours,
FRANCIB W. STOVER,
Director, National Legislative Service.
V E T E R A N S OF F O R E I G N W A R S OF THE U N I T E D STATES,
NATIONAL R E H A B I L I T A T I O N SERVICE,
Washington, D.C, August 1, 1981.
Mr. F R A N C I S W. STOVEII,
Director, VFW National Legislative Service,
Washington, D.C
D E A R M R . STOVER: This 1B in response to the request of Hon. Olin E. Teague,
chairman of the Committee on Veterans' Affairs, House of Representatives of tho
United States for the opinion of this service concerning the findings and conclu-
sions prepared in each of four cases by law students and by the Board of Veterans
AppealB.
I t should be emphasized t h a t any comparison of the comments of tho staff
of this service concerning the sufficiency of the findings of fact and the conclu-
sions of law by the Board of Veterans Appeals with our comments concerning the
findings of fact and conclusions of law by tho law students is fraught with t h e
probability of fallacy for t h e following reasons:
(1) The Board of Veterans Appeals presumably studied and considered all of
the pertinent evidence contained in the claims folder and the statement of facts
prepared by the field station of original jurisdiction while t h e law students ap-
parently had only the statement of facts available.
(2) Members of the staff of this service havo, of course, not been afforded an
opportunity t o review all of t h e evidence in t h e individual cases with t h e excep-
tion of case No. 4 in which the claimant was represented by the Veterans of Foreign
Wars of t h e United States.
(3) T h e statement of facta in each case as certified to bo correct by the service
representative concerned, may be entirely correct. However, with the excep-
tion of ease No. 4 in which t h e V F W represented t h e claimant, I, a s director of
this service, will not accept assurance of accuracy of t h e statement of facts in each
case. I t seems doubtful t h a t each statement of facts is complete. T h e military
record information appears t o be adequate, and the recitation of adjudication
actions is probably accurate b u t the information extracted from the Veterans'
Administration medical records is of doubtful adequacy. We gained a general im-
pression while reviewing other cases in this group of approximately 100 cases in
which field stations prepared summaries, t h a t the statements of fact prepared by
field stations were not all complete as t o reference to pertinent evidence, and t h a t
in some instances descriptive statements of contents of evidentiary documents,
especially medical statements and reports of examinations, were not adequate.
Concerned service representatives were obviously aware t h a t t h e Board of Vet-
erans Appeals would consider not only the statement of facts b u t all of t h e
pertinent evidence io the claims folder and for t h a t reason were probably not as
concerned as they might otherwise have been as t o completeness of the statement
of facts.
(4) Tho Board of Veterans Appeals bears the onus for the propriety of decisions
and tho resulting disbursement of Federal funds predicated on each favorable
decision. The law students bore no such burden and perhaps evaluated the cases
partly from the viewpoint of their anticipated future vocation as practicing
attorneys and tho resulting attorney-client relationship. The same general
observation would be appropriate if the some cases were referred to service repre-
sentatives for preparation of separately stated findings of fact and conclusions of
law. Service representatives do not bear responsibility for decisions and the
disbursement of Government funds and are understandably inclined to emphasize
t h a t part of the evidence and to advance those contentions which tend to enhance
the merits of tho claim and tho possibility of favorable action by the agenoy of
jurisdiction.
(5) The Board of Veterans Appeals had available and doubtlessly utilised the
knowledge of medical consultants as well as the knowledge of the medical associate
members of the sections of the Board to which the cases were assigned. As far
as is known, medical consultant service was not available to the law students.
(6) I t is possiblo t h a t the law students did not have available to them all of the
pertinent directive publications of the Veterans' Administration.
I shall comment as to tho sufficiency of the separately stated findings of fact
and conclusions of law by the Board of Veterans Appeals, and also by the law
students In each case. Except as specifically indicated, it may be assumed t h a t
this service considers the findings of fact and conclusions of law by the law students
and by the Board of Veterans Appeals to be sufficient in scope although not entirely
proper in some instances. It is impossible, in my opinion, to adequately and
precisely comment on the sufficiency of t h e findings and conclusions of law without
expressing an opinion as to the propriety of the expressed decision In each case
by tho Board of Veterans Appeals and by the law students.
Question at issue; Restoration of service connection for otosclerosis
Tho findings of fact and conclusions of law by the Board of Veterans Appeals
concerning defective hearing appear t o be sufficient and proper. Defective hear-
ing definitely preexisted service but definitely increased in degree during service.
The increase in the hearing disability during service was obviously not due solely
to natural progress.
The Board of Veterans Appeals disposed of the question of restoration of service
connection for t h e neuropsychiatric disorder by simply Baying t h a t the anxiety
reaction would have been present even though the hearing nod been normal,
thus minimising and in fact disregarding the probability t h a t the neuropsychiatrio
condition is attributable to worry over tho loss of hearing.
The law students correctly commented in the findings of fact t h a t the concerned
field station did not make a specifio finding t h a t the increase in the hearing dis-
ability during service was due to natural progress and, therefore, concluded t h a t
service connection should be restored. This is an obviously correct conclusion and
coincidentally is consistent with the Board of Veterans Appeals decision in this
respect. In the findings of fact the law students commented t h a t no specific
finding was made t h a t the increase in hearing disability after service was duo to
natural progress. It is apparent t h a t this point is not pertinent to the question of
service connection by aggravation.
As to the conclusion of the law students t h a t service connection should be
restored for anxiety reaction, I am inclined to the opinion t h a t this decision is
roper based on the statement of facts prepared by the field station. In any event,
F am convinced t h a t the disposition of this port of the claim by the Board of
Veterans Appeals was not proper in the apparent absence of an analytical profes-
sional opinion. Whether service connection for the ncuropsychiatric disorder
should be restored, based upon evaluation of all of the evidence and possibly
additional evidence obtained b y further development, might be debatable,
however.
CASE NO. 3
Question at issue: Restoration of service connection for otitis media and defeetivt
hearing
The field station summary does not Indicate whether tho loss of hearing deter-
mined in Julv 1959, was based on findings of an audtological clinic or on the find-
ings of a physician without utilisation of modern examining equipment and
techniques. To this extent the statement of facts is probably faulty.
Otitis media obviously preexisted service. From a practical analysis tho
question a t issue is solely whether the hearing loss, which apparently was first
evidenced on examination in 1951, was due to service as a result of exposure to loud
noises and blasts. While there is no evidence in the statement of facts of a com-
pensable degree, of disability resulting from otitis media and hearing loss, prior to
1951, in view of the lay affidavits attesting to Bymptoms in service, it Is difficult
to agree with the negative conclusions of the Board of Veterans Appeals denying
restoration of service connection on the grounds t h a t otitis media clearly and
unmistakably existed prior to service, and t h a t clearly and unmistakably there
was no increase in severity in service, and further, t h a t loss of hearing was not
demonstrated during service.
Obviously, service connection was originally granted for otitis media because of
aggravation of a preexisting condition based on increase in the disability more than
the expected natural progress. Although the initial rating by the Veterans'
Administration granted only a 0 percent evaluation, this docs not necessarily
prove t h a t there was not an ascertainable Increaso in the disability in service, and
that such increase in severity was due to natural progress.
The law students correctly pointed o u t t h a t service connection for otitis media
and hearing loss must be conceded if the increase In severity was not specifically
found by the Veterans' Administration rating agency t o have been duo only t o the
natural progress of the disease. The statement of facta prepared by the field sta-
tion folia to indicate any such finding. This omission, howover, should not have
been construed by the law students to be a basis for a favorable decision restoring
service connection without consideration by such group as to the merits of the
claim in this respect. In other words, tho law students, substituting themselves
for the Board of Veterans Appeals for the purpose of evaluating this claim, could
have made such a finding. However, apparently In their judgment there was an
increase in excess of the expected natural progress of t h e disability b u t there re-
mains some doubt as to whether this judgment was based on an evaluation of tho
evidence as reflected by the statement of facts or the simple fact of absenco of a
finding by the original rating agency t h a t any increase In severity was due to
natural progress of the disease.
Because of the judgment of tho Board of Veterans Appeals to the effect t h a t
there was no increase in eovcrity of any preexisting condition, tho question of
whether an increase la severity was due to natural progress bocamo moot in the
consideration of this question by t h a t agency.
Since service connection was once granted, I havo reservations as to tho pro-
priety of severance of service connection, b u t in this particular coso I would not
want to express a firm opinion to this effect without the privilege of reviewing all
of the pertinent evidentiary record.
CASE NO. i
Question at issue: Service connection for deformity of the right foot duo to osteomyelitis
The findings of fact by the Board of Veterans Appeals entirely omits reference
t o a medical determination in servico t h a t "oxecssivo standing on a structurally
defective foot has permanently aggravated the pain and deformity proximal to
tho defect. Line of duty—yes."
This is strong evidence supporting tho contention t h a t service connection is in
order because of aggravation despite the obvious fact t h a t osteomyelitis, healed,
with resulting shortening of tho right great toe, preexisted servteu. T h e Board of
Veterans Appeals apparently gave unduo weight to the fact t h a t tho veteran was
excused from drill in January 1043, and apparently was also oxcusod from basic
training and calisthenics during a period of approximately 1 year. Despito the
fact t h a t the veteran was assigned to limited d u t y in service, he was required to
perform duties which required standing for a considerable period of time.
The Board of Veterans Appeals concluded t h a t there was no increase in severity
in the disability during service. Based on this conclusion, the question of increase
due t o natural progress became moot a n d denial of restoration of service connec-
tion was necessary in view of this finding.
If the statement of facts prepared by tho field station is accurate and complete
it appears t h a t the decision of the Board of Veterans Appeals in this case Is in error.
T h e law students concluded t h a t there was on increase in the severity of the
the disability in service find further concluded t h a t such increase was n o t due to
the natural progress of the disease. The law students properly stated t h a t the
possibility t h a t the condition was further aggravated by the veteran's employment
since service is not relevant to the issue of service connection. They impropeily
concluded, however, t h a t this is a m a t t e r for t h e rating board in arrivlag a t a
decision concerning the degree of disability presently existing which is attribut-
able to the veteran's service. I t is well known t h a t if service connection is granted
because of aggravation, the total award based on the present condition is reduced
by the per centum assigned because of the degree of disability existing a t the time
of entry into service. However, If a properly service-connected disability gradu-
ally increases in degree subsequent t o service and granting of service connection,
the per centum assigned is based on the current degree of disability except for the
preexisting degree of the disability despite the fact t h a t one could logically say
t h a t to some extent the increase in severity is due t o postservice employment. If
another disability definitely due to t r a u m a subsequent to discharge is super-
imposed, the problem of separation of the disabilities for rating purposes exists.
Despite certain improprieties in the conclusions of law by the law students,
and If the statement of facta prepared by the field station is correct and complete,
i t is believed t h a t the conclusion t h a t service connection for t h e deformity of tho
right foot on the basis of aggravation by the law students should be restored, is
proper.
CASE NO. 4
Question at itsue: Restoration of service connection for blindness and removal of left
eye
The claimant in thlB case was represented by the Veterans of Foreign Wars of
the United States. I t is believed t h a t the statement of facte prepared oy the VA
regional office ig correct. However, because t h e complete evidentiary record was
available to the responsible V F W accredited representatives, I do n o t offer assur-
ance t h a t the certification of accuracy of the statement of facts should be accepted
as certification of the adequacy or completeness of such statement.
I t la believed t h a t the Board of Veterans Appeals incorrectly stated In the
finding ot facts t h a t the enucleation of the left eye during service was for correc-
tion of a preexisting disability. This might be an acceptable finding except for
t i e circumstances of service. The preexisting disability of Dlindness was ob-
viously not in Itself subject to correction by surgery. Unquestionably, enuclea-
tion was not necessary a t time oi entry into service. I t is rather obvious t h a t
the preexisting pathology of the left eye was aggravated b y excessive heot a n d
probably also oy sand during the veteron's service in the desert area. Enuclea-
tion was due t o an increase in the eye pathology as a result of aggravation and
was not due solely to natural progress. This would have resulted in a 40-percent
award less 30 percent assignable for the total blindness of the left eye at time of
entry into service. While the Board of Veterans Appeals' decision t o deny
restoration of the statutory award for enucleation of the left eye was proper, it
is believed t h a t service connection for the enucleation should be favorably con-
sidered.
The law students correctly concluded t h a t it was erroneous to grant the statu-
tory award for blindness of the left eye based solely on the fact of enucleation.
I t is believed, however, t h a t the conclusion of the law students to the effect t h a t
service connection for any residual disability attributable t o enucleation m u s t be
conceded is improper. To justify service connection and compensation for
residual effects of enucleation, the enucleation m u s t be service connected. This
could b e properly accomplished on the basis of aggravation of the preexisting
condition thus necessitating enucleation.
OENEHAL COMMENTS AND CONCLUSION
I t is noted t h a t each of the four cases involves the question of restoration of
Bervice connection previously granted and severed. As service representatives,
members of our BtaiT aro inclined to be sympathetic with respect to restoration of
service connection, especially if the VA reviewed the case Bcvcral times and main-
tained service connection after several reviews during a period ot many years.
Certainly, belated severance of service connection Is not justified unless there Is
no reasonable basis to maintain service connection, and there is a complete dearth
of supporting evidence. We were pleased with the enactment of Public Law
86-501 (now sec. 359, title 38, United States Code).
Frequently, the law students, in referring to the action severing Bervice connec-
tion on the ground t h a t the grant of such service connection was clearly and
unmistakably erroneous, commented t h a t "error was not specified." Tho alleged
clear and unmistakable error, of course, was the actual grant of service connection
belatedly determined n o t t o b e supported by t h e evidence. As service repre-
sentatives, members of our staff have frequently disagreed with the judgment of
concerned VA officials in determining t h a t tho grant of service connection was
clearly and unmistakably erroneous. Perhaps It would be difficult or impossible
to cite the error in a more specific manner, b u t it Is believed t h a t the reasons for
concluding t h a t the evidence do n s n o t support the original grant of service connec-
tion after reevaluation could be more precisely and understandably stated in
many cases.
I t is presumed t h a t the requested analysis of these cases and the total project
involving approximately 100 cases ia related to consideration of the possibility of
requiring field stations to prepare a summary or statement of facts in each appealed
case, and the possibility t h a t the Board of Veterans Appeals will, In the future,
consider only such summaries rather than all pertinent evidence in the basic
record in considering questions at issue. While such relatively brief summaries
might b e a satisfactory basis for final action b y the Board of Veterans Appeals in
some types of cases, such as the question of the right to enter training under
what was known as Public Law 346, 78th Congress, several years after the Indi-
vidual veteran's delimiting date even for completion of training, we remain wholly
unconvinced t h a t such summaries would be satisfactory for consideration by the
Board of Veterans Appeals a s a basis for final decisions of t h a t agency in any
significant percent of the total cases considered by the Board. The summaries
studied by members of the staff of this Service in connection with representation
of claimants causes us t o believe t h a t many of them are not adequate or complete
although probably reasonably accurate, i t is conceded t h a t after further instruc-
tion, training, and experience of VA field station personnel, Buch summaries
would improve. Certainly, we would not w a n t to represent a claimant without
studying the pertinent evidentiary record in addition t o any summary or state-
ment of tacts prepared by a field station unless we were convinced of the accuracy,
adequacy, and completeness of such statement. Such assurance could be gained
only by a thorough study of the record and comparison which in itself would
involve as much or more effort and time than the study of the record and repre-
sentation of the claimant based on analysis of the pertinent evidence without
reference t o any statement of facts prepared by t h e agency of original jurisdiction.
Related t o this Btudy, and t o m y comments, is the new Board of Veterans
Appeals decision format which includes separately stated findings of fact and
conclusions of law. We believe this t o be an improvement and concur in the
enactment of Public Law 87-97, directing the use of such revised format by the
Board of Veterans Appeals in all cases on and after January 1, 1962. We further
believe t h a t an evaluation of the general and specific results of universal use of
this format by the Board of Veterans Appeals would be proper after approximately
1 year of experience, and this Service plans t o conduct such a Btudy.
Very truly yours,
NOBMAN D. JONES, Director.
 T H B AMEBJCAN LEGION, the old form. Although experience will probably suggest the need for further
REHABILITATION COMMISSION, change, the new approach aeenw calculated to help produce sound and reasoned
Washington, D.C., August 7, 1961. decisions.
Hon. O L I N E. T B A O U B , T h e sufficiency of findings of fact and conclusions of law in any Individual case
Chairman, Committee on Veteran*' Affaire, Is determined by a careful review of all of the original records of t h a t ease. We
Home of Representative*, Washington, D.C. are confident t h a t the new format, described in H.R. 666, will help Insure sufficient
D B A B M B . TBAOUB: Thank you for your letter of July 14, 1961, addressed to findings and conclusions.
our legislative director. Miles Kennedy, io which you furnished partial galley The American Legion is grateful to the House Veterans' Affairs Committee for
proofs of House Committee Print 118. Mr. Kennedy has asked t h a t I reply t o its continuing interest in the adjudication of veterans' claims and the operation
your letter. of the Board of Veterans Appeals,
Members of our staff, including our legal consultant, have carefully reviewed Very truly yours,
the material. I t is our opinion t h a t the format now being used in decisions J O H N J. COBCOBAN, Director.
rendered by the Board of Veterans Appeals is a considerable Improvement over
1802 JUDICIAL REVIEW OF VETERANS' CLAIMS

Analysis of decisions on cases disposed of by Board of Veterans Appeals, fiscal year

1945 to fiscal year I960

Cases Decisions
Cases disposed
received of by Decisions
Fiscal year by Board Board of rendered With-
of Veterans Veterans Allowed Percent Denied Remanded drawn
Appeals Appeals No. allowed and dis-
missed

1961 37,692 34,698 44,398 3,831 8 27,682 3,077

1960 36,017 39,136 50,130 4,034 8 41,934 3,997 165
1959 37,287 36,302 46,696 3,326 7 39,472 3,656 242
1958 38,281 39,419 50,063 3,501 7 42,615 3,771 176
1957 36,850 35,807 46,015 3,300 7 38, 746 3,769 200
1956 -„ 41, 812 44,250 54, 791 3,898 7 46,438 4,160 •'295
1955 47, 748 49,106 60,977 4,760 8 51, 282 4,501 434
1954 47,233 44,861 56,656 4,578 8 47,729 3,965 384
1953 50,528 49,658 60,343 3,982 7 51,995 3,725 641
1952 55,599 53,436 63,467 4,584 7 54,039 4.077 767
1951 52,843 55,578 67,479 4,872 7 57,280 4,426 901
1950 62,634 64,661 77,245 6,486 8 64,591 5,345 823
1949 54,502 57,315 69,719 7,972 11 55,613 5,331 803
1948 41,985 38,904 49,039 5,901 12 37,919 4,535 684
1947 37,647 37,109 45,972 5,050 10 35,624 4,843 455
1946.. 24,225 22,753 28,128 2,260 8 23,552 1,994 322
1945 18,007 17, 470 22,600 1,334 6 19,808 1,174 284

Analysis of compensation and pension cases disposed of by Board of Veterans'

Appeals, fiscal year 1961

Cases
Claims involved
Total Allowed Denied Remanded

Disability compensation:
12,165 1,166 10,022 977
11,703 1,724 8,883 1,096
Total 23,868 2,890 18,905 2,073
4,495 354 3,666 475
Disability compensation and pension:
798 121 595 82
62
11
1,547 127 1,277 143
Dependency and indemnity compensation 1,254 116 1,035 103
Death compensation and pension:
11
1
Total 32,047 3,608 25,478 2,876

Reconsiderations—Board of Veterans' Appeals

a
Fiscal y e a r : ""
1960 '376
1961 278
1962 (6 m o n t h s ) 132
' 44 reconsiderations in fiscal year 1960 were identified as occurring following revision of the Board's pro-
cedures in April 1960 under which reconsideration may be by enlarged panels.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1803

Dissents—Board of Veterans' Appeals

Fiscal year: c<uu
1960 21
1961 38
1962 (7 months) 27
Percentage allowances of Pension Appeals Tribunal in England and Board of
Veterans' Appeals
England United States
Allowed Allowed
Pension appeal tribunals: (percent) Board of Veterans' Appeals: (percent)
1945 24 1945 6
1946 32 1946 8
1947 33 1947 10
1948 25 1948 12
1949 15 1949 11
1950 14 1950 8
1951 14 1951 7
1952 12 1952 7
1953 .-. 12 1953 7
1954 11 1954 8
1955 11 1955 8
1956 13 1956 - . 7
1957 13 1957 7
1958 19 1958 7
1958 20 1959 , 7
1960 17 1960 8
United States Courts
District courts, fiscal year 1961: '
Civil cases " 50, 490
No judgments or dismissals 26, 766
Plaintiffs prevailed 17, 000
Defendants prevailed 6, 600
Both plaintiff and defendant won partially 150
Circuit courts of appeals, fiscal year 1961:
Total appeals (civil and criminal) 2, 806
Affirmed 2,023
Reversed 692
Otherwise 91
Calendar year 1961

Opinions Dissents

322 60
03 ]
367 49
191 20
156 9
452 53
157 4
222 11
155 1
328 9
84 8

Supreme Court, 1960 term:

Opinions 129
Affirmed lower courts . 46
Reversed 63
Dismissed or vacated-. 15
Affirmed and reversed. 5
Number of dissents 111
18Q4 JUDICIAL REVIEW OF VETERANS' CLAIMS

INSURANCE C A S E S P E N D I N G IN U.S. COURTS, FISCAL Y E A R 1961

T h e following is a compilation showing t h e n u m b e r of Government insurance

cases pending in t h e Federal courts a t t h e beginning and closing of t h e fiscal year
1961.
(o) G o v e r n m e n t insurance cases pending a t the beginning of t h e fiscal year C<uu
1961 141
(6) G o v e r n m e n t insurance suits filed during t h e fiscal year 1961 97
(c) G o v e r n m e n t insurance suits closed during t h e fiscal year 1961 94
(d) G o v e r n m e n t insurance cases pending a t t h e close of the fiscal year 1961 _ 144

A breakdown of t h e 94 insurance cases closed during the fiscal year 1961 discloses
t h a t t h e y were disposed of in t h e following manner: c

Contested liability (judgments for plaintiff) 5

Contested liability (judgments for Government) 5
Stipulated j u d g m e n t s (favor of plaintiff) 14
Compromise j u d g m e n t s (favor of plaintiff) 14
Dismissed 18
Stakeholder cases (involving disputes between 2 or more claimants—-tried or
settled b y assignments p u r s u a n t to 38 U.S.C. 718) 38

Total 94

Explanation of the English System

T h e t e r m " p e n s i o n " with t h e meaning of a non-service-connected p a y m e n t is
u n k n o w n in t h e British system. Only " c o m p e n s a t i o n " is paid for service-incurred
disabilities a n d this is called pension.
I n t h e first 7 years following a m a n ' s discharge any disability or disease which
he encounters is presumed t o have been service incurred a n d t h e burden is on t h e
Ministry of Pensions and National Insurance t o prove t h a t the disability or disease
did n o t occur in t h e service. On t h e other hand, after 7 years t h e onus is upon
t h e v e t e r a n t o prove t h a t t h e disability did occur in t h e service.
By virtue of t h e provision to article 2(3) of t h e royal w a r r a n t , where any medical
question appears t o t h e Minister to raise serious d o u b t or difficulty, he may o b t a i n
t h e opinion thereon of one or more of a panel of independent medican experts
n o m i n a t e d by the president of t h e R o y a l College of Physicians, t h e Royal College
of Surgeons, or t h e R o y a l College of Obstetricians and Gynecologists, a n d in t h a t
case t h e m a t t e r involving t h a t question shall be determined in accordance with
t h a t opinion. On t h e other hand, rule 15 of t h e Pensions Appeals Tribunals Rules,
1946, provides t h a t where t h e tribunal are of opinion t h a t a difficult medical or
other technical question arises, t h e y m a y , before giving their decision, t a k e t h e
opinion of a medical specialist or technical expert in such m a n n e r as may appear
t o t h e m to be convenient.
I n t h e first case, t h e expert's opinion is binding on the Minister who m u s t
decide t h e initial claim to pension accordingly, whereas in t h e second case, t h e
m a t t e r having already come to an appeal, t h e tribunals are n o t bound by t h e
expert's opinion, his views becoming only one item of evidence for consideration
b y t h e tribunal. I t has been laid down by t h e nominated judge on more t h a n
one occasion t h a t a conflict of medical opinion does not of itself raise a reasonable
d o u b t which a t r i b u n a l must resolve in an appellant's favor, nor is a tribunal
b o u n d to follow t h e opinion of t h e greatest n u m b e r of experts nor of t h e most
eminent one of t h e m .
T h e d u t y of preparing the s t a t e m e n t of case is given to t h e Minister under
rule 5 of t h e Pensions Appeals Tribunals Rules, 1946, a copy of which is reproduced
on page 3048 of t h e "Judicial Review of Veterans' Claims H e a r i n g " in t h e 86th
Congress.
Safeguards exist against any suggestion t h a t t h e s t a t e m e n t of case m a y n o t
contain all t h e relevant evidence, the principal ones being t h e right of t h e appellant
to s u m b i t an answer, t h e power of t h e President to order disclosure of d o c u m e n t s
in certain circumstances, the availability t o all parties of d o c u m e n t s in evidence,
a n d t h e ability of a tribunal t o adjourn t h e hearing to o b t a i n further information
on a n y point.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1805

The time within which an answer should be lodged is 28 days, and if an answer
is made, the Minister is not restricted to a further period of 28 days in which to
reply, but does so "as soon as may be" thereafter. There is no necessity that the
statement should be agreed between the parites, and the Minister may decline
to comment on the appellant's answer.
Finally, an appeal to the High Court, being permissible only on a point of law,
can apply only to an entitlement issue, not to an assessment or amount of per-
centage of disability issue, and provision is made for the chairman to set forth
the question of law for the decision of the judge. The case stated, therefore,
rather than the statement of case, becomes the basis of the hearing in the High
Court, although the latter would, of course, be available to the nominated judge.
The point here, of course, is that the judge's function is to rule whether an error
in law has been shown, and if so, what its effect might be on the tribunal's decision,
rather than to usurp the functions of the tribunal and rehear the case de novo.

MINISTRY OP PENSIONS AND NATIONAL INSURANCE

ENTITLEMENT
REPORT OF MINISTRY REPRESENTATIVE

Pensions Appeal Tribunal Ministry Ref. M2/690624

Court No. 1
Sitting at: Lands Court Tribunals, 3, Hanover Square, London, W.l. Date:
8th December, 1961
Name of appellant: MORRIS, William Daniel [father, on behalf of Dependant
William Brian Morris, deceased]
Appeal against rejection under Article 4(3) R.W.:
Disability: ACUTE LYMPHOCYTIC LEUKAEMIA

Composition of Tribunal Decision of tribunal

Chairman: Sir Stafford Foster-Sutton, Q.C.
Medical Member: Dr. R. A. Hickling, M.B., F.R.C.P., Reserved
M.R.C.S.
Service Member: Mr. F. W. Hall
1. Was the appellant present? Yes.
2. Was the appellant medically examined? No.
3. Was the availability of the signed M.S. opinion made known by M.R.? Yes.
4. Was the M.S. opinion produced? Yes.
5. Appellant's representative, Mr. Peter Ripman [of Counsel, instructed by
Messrs. Culross & Coy.]
Col. Geoffrey Fawcett Taylor, M.A., B.Ch., M.R.C.P., M.R.C.S., L.R.C.P.
attended and later gave evidence on behalf of the appellant, and Dr. C. W. A.
Emery, C.B.E., M.B., B. Ch. also gave evidence for the Ministry. Several
members of the press and public attended the hearing.
The Chairman opened the proceedings by explaining that the appeal was
governed by Art. 4(3) of the Warrant. This meant that the Ministry had the onus
of establishing their case beyond reasonable doubt.
Mr. Peter Ripman began his opening address, which occupied approximately
two hours, by saying that the appellant was now deceased but his father was
present in Court today and could be called as a witness if desired. However he
was naturally diffident about giving evidence, and Mr. Ripman did not think he
could really make a useful contribution.
Spr. Morris entered the Army on 1st March, 1956 and was discharged with
leukaemia on 15th April, 1958 and died shortly afterwards. At the post-mortem
death was found to be due to acute lymphatic leukaemia. He listed certain
basic facts, which he thought were common ground between the Ministry and
the appellant, viz:
(1) the aetiology of acute lymphatic leukaemia is uncertain
(2) the only known cause is radiation—that did not mean that there were
not other causes, but simply that radiation was the only known one
1806 JUDICIAL REVIEW OF VETERANS' CLAIMS

(3) the normal incidence in Spr. Morris' age group, i.e. the early twenties,
was extremely small—about four per million according to Dr. Sladden on
page 54 of the evidence
(4) that Spr. Morris went to Christmas Island in August 1957. There had
been two explosions there in May and one in June 1957 at a distance of not
less than 400 miles. On 8th November, 1957, there was a further explosion
at a distance of not less than 25 miles, and this could have been seen from
the air at any place on the Island. This bomb was in the megaton range,
i.e. 1,000 times that of the Kiloton weapons used at Hiroshima and Nagasaki.
(5) Spr. Morris contracted the disease on Christmas Island.
He was one of only a few thousand personnel on the Island, whereas his chances
of getting leukaemia in ordinary circumstances was about one in 250,000. If the
matter stopped there, there would be at least a very strong suspicion of a connec-
tion between service on Christmas Island and the disease.
There were two main arguments put forward by the Ministry—
(a) that the time factor, some eight weeks, between the fourth explosion
on 8th November, 1957, and the onset of leukaemia, was too short to permit
of any causal relationship, and
(b) the alleged absence of fall-out.
As to (a) at least it must be clear that such an argument was quite inappropriate
to Mr. Morris' contention that the former explosions caused it. In any event, in-
vestigation of all the evidence showed, in his submission, that there was no real
weight in the contention that seven or eight weeks was too short a time.
Paragraph 12 of the Medical Services Opinion on page 20 stated that expert
knowledge as to atomic radiation was based largely on the bombs dropped at
Hiroshima and Nagasaki, and Dr. " C " at the Inquest on Spr. Morris [page 17]
had repeated that the only evidence was the Japanese cases. Again, Dr. Levitt
at paragraph 3 on page 27 said "The evidence has come almost entirely from two
sources, first from the after-history of the survivors of the bomb explosions at
Hiroshima and Nagasaki and second from an investigation into the leukaemo-
genic effect of radiations when used in the treatment of ankylosing spondilitis."
Further confirmation of this would be found in the first Report of the Medical
Research Council, 1956 at paragraph 28 on page 9. The Ministry say that this
sort of leukaemia does not appear within two months of an explosion. But how
reliable were the Japanese statistics? To accept them presupposed that every
case in Japan was observed and diagnosed with such rapidity as to enable a date
to be given as to its onset. Mr. Ripman submitted that such a presupposition
was quite unjustified. Dr. Levitt, on page 27, had said * * * "Of the 52 cases
of acute leukaemia, however, 25 were myelogenous, 14 were lymphatic and six
unclassified. The relatively high incidence of acute lymphatic leukaemia seems
to have been overlooked by Medical Services, and is of especial interest as it is
known that lymphatic leukaemia is a rare disease in Japan independently of
atomic radiation exposure * * *. However, the Hiroshima survey cannot be
taken as a guide to the shortest latent period in acute leukaemia for the chaos that
prevailed in the early months of the explosion made it highly unlikely that the
condition would have been distinguished from blood failure and death from the
direct effect of the explosion * * *. Indeed, Court-Brown and Doll say, 'the
rates (of leukaemia) in the first two years may be underestimated since medical
organisation was incomplete in this period' ". Moreover, paragraph 21 of Medi-
cal Services Opinion, on page 22, agreed that "making a firm diagnosis in the
early stages of leukaemia is often extremely difficult." The Japanese statistics
were based on the work of the American Atomic Bomb Casualty Commission, to
which reference was made at paragraph 33, page 10 of the M.R.C. 1st Report of
1956. Mr. Ripman quoted from paragraph 56, page 14 of this M.R.C. Report,
and said that the information regarding one case of leukaemia in January 1947,
some 14 months after the explosion of August, 1945 confirmed the details given
by Col. Taylor on page 28 of the Statement of Case. Mr. Ripman also referred to
paragraph 59 of the M.R.C. 1956 Report as supporting his submission that data
relating to the Japanese explosions only started in January 1947 and questioned
how many Japanese had contracted leukaemia and died before the American
Commission came on the scene at all. It must be remembered that the Hiro-
shima and Nagasaki bombs were Kiloton weapons but the one at Christmas
Island was 1,000 times greater, and the results from it must be treated with great
caution.
Although it was right to mention that Dr. Levitt had subsequently withdrawn
his support of the claimant's case [for reasons which Counsel could not accept and
which he would deal with later] what Dr. Levitt had said in his report of 27th
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1807

April, 1959 was no less reliable, scientifically. On page 27 he had said "The
second objection, namely that there were no symptoms of radiation exposure
after the explosion, is readily met. In the atomic bomb casualty survey re-
ported by William C. Moloney and Marvin A. Kastenbaum * * * approximately
one-third of all the cases of leukaemia discovered (17 out of 50) had no radiation
complaints immediately after the explosion even though ten of the patients with
no radiation complaints were as close to the hypocentre as 1,500 metres."
Spr. Morris had died from lymphoblastic leukaemia, the most acute and rapid
type, in which signs and symptoms moved with extreme rapidity.
Mr. Ripman cited paragraphs 6, 7, 8, 10, 11 and 12 of the M.R.C. Second
Report of 1960 also paragraphs 40, 41 and 42, and observed that knowledge of
the effects of radiation was still advancing at a tremendous pace, although there
were still many gaps. He then turned to the evidence given at the Inquest on
Spr. Morris, and said there appeared to be some rather alarming discrepancies in
the views expressed by Br. " C " and Lt. Col. " D " and it was odd that Medical
Services had apparently had to rely on this sort of anonymous evidence. Dr. "C"
had said "the incidence of leukaemia is increasing and this does bear relationship
to radio-active fall-out". Col. " D " said he knew of no case of acute lympho-
blastic leukaemia having ever been recorded on the literature as being attributable
to radiation effects, and, later, that he thought there was no connection between
radio-activity and lymphatic leukaemia. This must surely show either that
Col. " D " was not very familiar with the up-to-date publications, or he had com-
pletely misunderstood them. However, Prof. Windeyer agreed it was a possibil-
ity, and indeed, Mr. Carter, the Ministry's Representative today, had assured
him that the Ministry did not contend otherwise. Col. " D " had also said that
Morris' was "the wrong kind" of leukaemia. In other words, that if there were
any relationship to fall-out, he would have expected Morris to have developed a
myeloid leukaemia. But this was like saying that a man who developed pneu-
monia after exposure on a hill-top couldn't say it was due to that exposure, simply
because a doctor had thought it would be more likely for him to have merely
caught a cold. Paragraph 12 of Medical Services Opinion on page 20 admitted
that rays emitted by radio-active material may penetrate the body and leave in
their tracks a breaking down and disintegration of body cells which give rise to
overt radiation damage, and further that both bone and lyrirphatic tissue are
readily destroyed. Mr. Ripman repeated that there was no justification for
claiming that an acute lymphatic leukaemia could not arise within two months
of, and be due to, a nuclear explosion such as that of 8th November, 1957, and
that the time factor had no relevance to the earlier explosions in May and June,
1957.
As to (b) the alleged absence of fall-out on Christmas Island. Undoubtedly
there was evidence to that effect, but how reliable was it? The War Office meas-
urements had been directed to detection of gamma rays, but Col. Taylor would
say that those were by no means the only ones—we were concerned with beta rays
too. He referred to the War Office letter of 16th July, 1959, paragraph 2 on page
30, and claimed that air sampling and sticky paper testing would not disclose
the presence of beta rays. Again, the War Office letter of 10th September, 1959,
paragraph 4 on page 35 dealt only with neutron and gamma radiation, yet the
First M.R.C. Report of 1956, paragraph 19, page 5, stated that beta particles
* * * were valuable therapeutically to destroy tissue. In Dr. Levitt's opinion,
on page 24, he said "The second, so-called tropospheric fall-out, proceeds over a
matter of a few weeks following the explosion. It consists of relatively fine ma-
terial, suspended in the lower layers of the atmosphere and it is deposited largely
as a result of rain, falling out fairly widely in the area of the test site * * *.
Turning now to the question of possible exposure from fall-out the position is
quite different * * * this hazard is much less manageable and much less pre-
dictable. We have only to recall the accidental exposure of 28 American service-
men and 239 Marshallese to the fall-out from the March 1st 1954 explosion, in
spite of all precautions. 90% of these men developed skin burns and epilation
* * *. Another freak fall-out from the same explosion involved the fishermen
in a small Japanese boat, the Fukuru Maru who were no less than 90 miles
from the explosion centre. Every man on the boat sustained injury from
exposure to fall-out and at least one has died. Not only were the fish and the
boat itself found to be heavily contaminated with radioactive dust on its return
to harbour, but for weeks afterwards large quantities of fish caught in the neigh-
bourhood had to be destroyed. Were it not for the accident to the fishermen this
fish would have been eaten without investigation since the radioactivity can only
be determined by physical investigation * * *."
1808 JUDICIAL REVIEW OF VETERANS' CLAIMS

Dr. Antoinette Pirie has said, on page 56 of the evidence, "It seems to me,
therefore, impossible to be completely satisfied that the nuclear explosions on
Christmas Island, whether before or after the arrival there of the deceased are
casually unrelated to his death. The factor that weighs most with me in coming
to this decision is the habit of radioactive fission products to be unevenly dis-
tributed in the environment and to become concentrated in particular organs of
particular animal and plant species." Mr. Ripman asked the Tribunal to pay
particular attention to the phrase he had stressed, or a reason which he would
make clear later on.
On page 51 there appeared a report by the Senior Scientific Liaison Officer of
the New Zealand Scientific Office in London, showing a spectacular build up of
Strontium 90 radio-activity in New Zealand soil over recent years. Strontium 90
was described as the most dangerous of all highly radio-active fission products and
arrived in the soil from the fall-out of nuclear explosions in the atmosphere * * *.
It remained radio-active for years and could cause bone tumour, leukaemia and
other cancers. New Zealand was some 2,500 miles away from Christmas Island,
yet Strontium 90 had trebled there. Fall-out came down in rain, and on Christ-
mas Island there had been heavy rainfall, plus the land crabs. Spr. Morris'
commanding officer had reported, on page 16, * * * "we had a lot of rain and at
times the tents were waterlogged. The men had camp beds which they put on
wooden boxes mainly to stop land crabs getting in at night. The beds were well
above the water level."
It was true that Dr. Levitt had withdrawn his support for the claim, because
he appeared to have accepted the War Office evidence of no fall-out, which Mr.
Ripman and Col. Taylor, on behalf of the appellant, did not, but even Dr. Levitt
said no more than that "it is unlikely that deceased was exposed to either immedi-
ate exposure or fall-out to an extent which might lead to the development of
leukaemia". Unlikely, could mean no more than that it was more probable
there was no connection, than that there was. In this case the balance of proba-
bility had to be such that it left no room for a reasonable doubt.
Examination of Spr. Morris' femur showed 0.15 Strontium 90 units—but no
blood tests had been carried out, and in Mr. Ripman's submission a test on one
femur was unreliable as it would not show the constant level throughout the body.
Col. Taylor had drawn attention to this at page 29 where he said "no evidence of
Strontium 90 in other parts of the body where it may have been higher" and "What
were Strontium 90 levels in other bones of Morris?" and he would remind the
Tribunal of Dr. Pirie's point that radioactive fission products tend to be unevenly
distributed and to become concentrated in particular organs of particular animal
* * * species.
The Ministry seemed to think that only Strontium 90 need be considered.
But Caesium 137, C. 14 (carbon), St. 89, Iodine 131 and Barillium 7 were all
radioactive products which were potentially dangerous and must be seriously
considered. Caesium 137 was not mentioned in the First M.R.C. Report of 1956
but it figures prominently on page 35 of the Second Report of 1960, and that em-
phasized the extent to which knowledge on the subject of radiation hazards was
advancing.
Dr. Levitt, on page 26, said "It must be explained that the significance of 90
strontium in this particular case is not its presence in bone, although great promi-
nence is given to 90 strontium as a long term and long range hazard to the gen-
eral world population, the real significance of strontium in the deceased's body
was not the probability or even the possibility that it led to his leukaemia, but
as an index to the much higher exposure which he must have sustained to a host of
other radioactive elements of short life and only local significance, which are released
on the spot." Yet, said Mr. Ripman, all we know is that nothing is known, apart
from the presence of Strontium 90 in the deceased's body.
As regards Prof. Windeyer's report on page 45, that gentleman started with
the assumption that the War Office evidence of no fall-out was conclusive. But
that was the very essence of the case. It really didn't need a doctor to give
such an opinion if the measurements were accepted—a competent lawyer or even
a layman could do as well. The Opinions of Medical Services were basically
submissions founded on the evidence as a whole. They did not add any weight
at all to the evidence. It was really extraordinary that paragraph 17 of the
Opinion on page 21 merely repeated what the pathologist at the Inquest had said
as regards 0.15 Strontium 90 units being a normal constituent of bone. When
this had been challenged by Dr. Levitt, the Ministry had had to refer the point
to Prof. Windeyer for an explanation.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1809

So far as the medical evidence was concerned, Dr. Levitt's original report still
held good as to its scientific content and was supported by those of Col. Taylor,
Dr. Sladden and Dr. Pirie. Against it, was the opinion of Prof. Windeyer and
the Medical Services, based on an assumption which he had tried to show was
completely unjustifiable. The Ministry had to discharge the burden of proof
beyond all reasonable doubt, and if he were asked whether they had done so,
there could only be one answer—they had not.
Col. Geoffrey Fawcelt Taylor gave his qualifications, adding that he was retired
from the Indian Army Medical Corps and was formerly consultant physician to
14th Army. He had also been consultant physician to King Edward College,
Lahore. He had been on pension tribunals in 1938, and was so serving in 1943
when the burden of proof was transferred from the claimants to the Ministry.
He had become interested in leukaemia and radiation after a colleague, who was
a radiologist, had developed acute leukaemia and died within three weeks. He
had been asked to write a thesis on the subject, but had decided there was not
enough evidence to warrant his doing so.
Lympho-blastic leukaemia was the most primitive leucocyte and ran a very
short course. Its appearance was also probably shorter, but this had never been
proved. I t was quite clear to him that beta rays had never been tested for on
Christmas Island. Air samples and sticky papers indicating tests for gamma
rays only. To test for beta rays was a much more complicated affair re-
quiring great technical skill. Beta radiation from Iodine 131 and Strontium
89 was the important thing and was now the object of routine testing follow-
ing the recent series of Russian experiments. There were appreciable risks from
beta rays such as caesium and C. 14. Iodine 131 and Strontium 89 and 90 were
the most highly concentrated, and Strontium 89 might be up to 48 times that of
Strontium 90. These products figured much more in the 1960 M.R.C. Report.
He produced a map of the world showing the Pacific, South America and North
Russia to be the areas of greatest concentration of Strontium 90, and the Pacific—
which included Christmas Island—to be the highest of them all. An explosion
within hundreds of miles of Christmas Island must have produced radioactivity
which would fall to earth in the rain. In his opinion this was not examined or re-
ported upon by the authorities on Christmas Island, and it could easily have
affected Spr. Morris' supplies of drinking water. I t was impossible to accept the
War Office evidence as true. In a recent B.B.C. "Panorama" programme, it was
stated that the concentration of Strontium 90 in Lapland was 100 times that of
the United Kingdom. He confirmed that in man there was no known cause of
leukaemia other than radioactivity. In his view Spr. Morris must have run a
greater risk of leukaemia by his service on Christmas Island. He produced an
extract from the British Medical Journal of 22nd July, 1961, page 211, showing
eight cases of leukaemia following treatment with radioactive iodine. There was
no known threshold below which radioactivity could be said to be safe, and it fol-
lowed that repeated small doses might have a cumulative effect. He referred to
Lord Adrian's Committee which had reported 20 cases occurring as a result of
mass radiography. On Christmas Island it was likely that Strontium 89 and
Iodine 131 would be more dangerous than Strontium 90. The quantity of
Strontium 90 in Spr. Morris' bone was therefore meaningless. He agreed that
most young men of 21 would have a level of 0.15 Strontium 90 units in their
bone now.
Ministry Representative questioned Col. Taylor as follows:
Q. 1. To take your last remark first, would you agree that 0.15 Strontium 90
units in bone is not only a normal constituent now, but was also normal in a man
of 20 at the time of the Inquest on Spr. Morris in August, 1958?
A. 1. Yes, but as I have already said, I don't regard that as being really rele-
vant to this appeal.
Q. 2. Would you agree that in ordinary civil practice, where there had been
no suggestion whatever of radioactivity, signs and symptoms in a case of acute
lymphatic leukaemia would arise and progress at the same rapid rate as in the
case of Spr. Morris?
A. 2. Yes, it would be impossible to distinguish one type of case from the
other.
Q. 3. Do you agree that the references made by Lt. Col. " D " at the Inquest
to cases of leukaemia setting in eight months after exposure to radiation, related
only to investigations among patients treated with X-rays for ankylosing
spondylitis?
A. 3. Yes.
1810 JUDICIAL REVIEW OF VETERANS' CLAIMS

Q. 4. As I understand your oral evidence today, you are suggesting that certain
radioactive isotopes, such as caesium, C.14, Strontium 89 and Iodine may have
been present on Christmas Island, undetected by the War Office measurements,
and may have contaminated Spr. Morris' drinking supplies thereby inducing
his leukaemia? If that were so, is it not strange that out of some 2,500 troops
on the Island, only one person was affected?
A. 4. No, such a proportion is about the same as revealed by the Japanese
investigations. In fact, however, there was another Naval Lieutenant who
served at Christmas Island and died of leukaemia, which doubles the proportion.
[M.R. then informed the Tribunal that a case was known to the Ministry of a
Naval officer who died of aplastic anaemia following treatment of an influenza-
type illness with sulphonamide drugs, but in that case there was no suggestion of
any connection with radiation and the circumstances were distinguishable from
Morris.
Col. Taylor insisted that treatment could only have followed the aplastic
anaemia, which was very similar to leukaemia, and did not detract from his point
that two serving personnel on Christmas Island had been involved.]
Q. 5. You have referred to the inhabitants of Lapland as having a concentration
of Strontium 90 100 times higher than that of the United Kingdom. Is there any
evidence of an increase in the incidence of leukaemia there, or anywhere alse in
these areas of increased Strontium 90 deposits?
A. 5. Owing to the long half life of Strontium 90 it is too early to say.
At this point the hearing was adjourned for the luncheon interval from 1 to
2 p.m., and on resumption, M.R. called Dr. C. W. A. Emery, C.B.E., M.B.,
B.Ch and questioned him as follows:
Q. 1. Having read all the evidence, and listened to the oral evidence today,
in your opinion was Spr. Morris' leukaemia due to radiation from any of the
nuclear explosions on or near Christmas Island?
A. 1. No.
Q. 2. Has the fact that this was an acute leukaemia, manifesting full clinical
symptoms within two months of the explosion on 8th November, 1957, any
effect on your answer?
A. 2. No. In the first place the evidence is that there was no radiation on
or near Christmas Island. In the case of the bombs dropped at Hiroshima
and Nagasaki there was intensive radiation, yet the increase in incidence of
leukaemia is described in the M.R.C. Reports as a delayed effect, manifesting
itself some 18 months later. There was one case noted in the Atomic Bomb
Casualty Commission's records within a few months, yet the experts found it
difficult to attribute that to fall-out. The reason being, in my opinoin, that
the effect of radiation is to depress the blood forming elements and it requires
a period of some 18 months for the body to react to this depression, which it
does by creating a proliferation of the white blood cells, and this is leukaemia.
I am puzzled by the suggestion that because this was an acute leukaemia of
the type which runs a short course, that this fact, by itself is to be explained by
nearness to an explosion or is proof of irradiation. This type of leukaemia will
run exactly the same course no matter where you find it and in the known absence
of irradiation of any sort.
Q. 3. There has been reference made to leukaemia having followed X-ray
treatment for ankylosing spondylitis. Is there any medical reason for distin-
quishing this sort of leukaemia from that following H-bomb irradiation?
A. 3. Yes indeed. In ankylosing spondylitis one is applying intense radiation
to already diseased bone. The ligaments are calcified, and the disease occurs
usually in the older age groups.
Q. 4. It is known that Spr. Morris' bone contained 0.15 units of Strontium 90.
Is that any evidence of his recent exposure to a nuclear explosion?
A. 4. In my opinion, no. The chart on page 46 shows that such a concentra-
tion was normal in his age group at that time; it is typical of millions of people
who had not been within a thousand miles of such an explosion.
Q. 5. We accept that leukaemia can be induced by atomic or therapeutic
radiation; but in your opinion can it be induced by Strontium 90, caesium,
Strontium 89, Iodine or Carbon 14?
A. 5. If you will let me off Strontium 90 for the moment; there has been no
evidence to date of any cases of leukaemia following the accident off Bikini
Atoll in 1954 where there was a really heavy fall-out, so great that it could be
picked up by the hand. There is no evidence that Strontium 90 has caused
leukaemia in any man.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1811

Q. 6. Have you ever heard of anyone, either accidentally or deliberately,

eating food contaminated with Strontium 90?
A. 6. Yes. After the Bikini accident to which I have referred, the islanders
of Rongelap continued eating their ordinary diet—which consists mainly of fish—
for at least two days before they could be evacuated, and no cases of leukaemia
have so far been reported. It is true that Strontium 90 has a half-life of 28 years,
so there is still time for something of this sort to happen, but it has not done so
up to seven years after the incident. As regards "deliberately", we have all
read in the newspapers recently of the experiment by three scientists at Harwell
who have been on a Strontium 90 diet for 31 days. One must assume that they
do not anticipate any harmful results.
Q. 7. In view of what you have just said, do you consider that the suggestion
that Spr. Morris might have eaten land crabs at Christmas Island could have
any bearing on the development of his leukaemia?
A. 7. Frankly, I find it difficult to follow Dr. Pirie's reasoning on this point.
It is well known that different things show great variation in concentration of
radioactivity. For example, breakfast cereals have a fairly high concentration,
brazil nuts higher still. If you travel from Edinburgh to Aberdeen the back-
ground radiation is twice as high owing to the granite buildings in Aberdeen. If
you go on to Karela State in India it is 40 times greater. But the point is that
the human body has learned to adjust itself to these variations over the centuries,
and no harm results. We are meeting these radioactive elements from outer
space all the time, and indeed they are essential to our functions. It is like saying
that water is necessary to our bodies, but it one's head is held under water long
enough, that is a bad thing. Although it is natural that there should be a certain
amount of public anxiety over this question of artificial radioactivity, I think
sometimes that these fears have been exaggerated. Already there seems to be
less reason for apprehension over the last series of Russian experiments than was at
first thought.
Q. 8. Can you give the Court any statistics as to the increase in the incidence of
leukaemia before, and after, the atom bomb explosions in Hiroshima and Nagasaki
in 1945?
A. 8. Yes—if you will look at Table 1A Appendix A, page 52 of the M.R.C.
Second Report of 1960, you will see that there has been a gradual and steady rise
in the incidence from about 1935 and that it had doubled before 1945. That rise
has continued since 1945 but there has been no sudden, dramatic, leap upwards,
and in fact the incidence has not again doubled. • These figures are for England
and Wales, but they are applicable to the world as a whole and show, in my opin-
ion, that the rise in leukaemia is not in general related to artificial radioactivity.
Q. 9. You have read the opinion of Prof. Windeyer—an acknowledged expert
in the field. Do you consider that a person of his standing would be likely to have
accepted the War Office evidence as to the absence of fall-out on Christmas Island
without realising the possibility of the existence of the other radioactive sub-
stances mentioned today by Col. Taylor, or that he would have given the opinion
he did if he had thought they could have had any bearing at all on Spr. Morris'
case?
A. 9. Definitely not.
Q. 10. It is a fact that none of these substances, i.e. caesium, Iodine 131, Stron-
tium 89, Strontium 90 and Carbon 14 would exist unless there has been some
degree of fall-out?
A. 10. Yes, in these circumstances it is, and, moreover, caesium does not stay
long in the body.
Q. 11. Is radioactive iodine fairly easily detectable?
A. 11. Yes, for example by the use of geiger counters. This is often done in
our Hospitals and is used in connection with certain conditions of the Thyroid
gland.
Q. 12. Had the War Office reported the presence of radioactive iodine on
Christmas Island, can you say whether the Ministry would have accepted the
possibility that the other substances might also have been present?
A. 12. Yes, certainly—but of course the War Office did no such thing.
Dr. Emery was then cross-examined by Mr. Peter Ripman, as follows:
Q. 1. Do you agree that radiation is a cause of leukaemia?
A. 1. Yes.
Q. 2. And that it is the only known cause?
A. 2. No, there is evidence that benzine may be another cause: a known
cause, yes. Cause of most cases is quite unknown but unconnected with radi-
ation.
1812 JUDICIAL REVIEW OF VETERANS' CLAIMS

Q. 3. Have there not been a number of cases in which leukaemia has been
caused by intensive radiation, and is it not invariably fatal?
A. 3. Yes—the treatment by X-rays of ankylosing spondylitis, but it is not
clear whether the cause was the gamma rays by themselves or in association
with the disease itself. Certainly there is no known cure for leukaemia.
Q. 4. Do you not agree that a number of cases have occurred due to fall-out?
A. 4. In the Japanese cases fall-out did not occur. I agree that any conclusions
based on the Japanese explosions, as to fall-out, are unreliable, we must take our
lessons from the 1954 Bikini fall-out.
Q. 5. But surely the Medical Services Opinions [see paragraph 12 on page 20]
say that much of our knowledge of this serious and fatal consequence of exposure
has been accumulated from the study of the United States Atomic Bomb Casualty
Commission which has studied the immediate and long-term effects of the explo-
sions over Hiroshima and Nagasaki? And does not paragraph 14 quote the
M.R.C. First Report of 1956 * * * "concentric distribution of the radiation was
not affected to the same degree as in Nagasaki by the irregular distribution of the
radioactive fall-out"? And do not Dr. Levitt, Col. Taylor and even Prof. Win-
deyer all treat fall-out as important and as having been responsible for some of
the Japanese deaths? Are you really saying there was no fall-out at Hiroshima
and Nagasaki?
A. 5. If I said there was no fall-out from the early Japanese explosions I
withdraw that. What I had in mind was that there was no fall-out of Strontium
90 then: it did not occur until after the very heavy fall-out following the Bikini
accident in 1954 and so far no case of leukaemia has been reported. There has
been no real fall-out from the recent Russian experiments as yet and it is not
expected until the Spring by which time Iodine 131 will be "dead".
Q. 6. Would you agree, Dr. Emery, that in 1957 the emphasis was on Strontium
90 rather than on caesium, Strontium 89, Iodine 131 and Carbon 14, and that
there is no evidence that tests for the latter group were carried out by the War
Office on Christmas Island?
A. 6. I must agree that I can see no direct evidence of that having been done.
Q. 7. Did you know about the eight cases of leukaemia following treatment
with Iodine 131 reported by the B.M.T.? (22/7/61).
A. 7. No, I had not heard of that until today.
Q. 8. No doubt you were surprised, but it is only in the last few years that
the dangers of these things have become known.
A. 8. I would not agree with the last part of your comment—the dangers of
Iodine 131 have been known for a considerable time. I should still like to repeat
that I know of no case in which leukaemia in man has resulted from Strontium 90,
or of anybody getting leukaemia as a result of fall-out. The average incubation
period is about 22 months, and the peak in Japan was reached some 10 years
after the A-bomb explosions. After that time, appearance of leukaemia would
still, in my view, be due to direct radiation and not to fall-out.
Q. 9. Would you agree that leukaemia is the primary thing to be feared from
fall-out?
A. 9. It may be something to be watched for but it is still true that no case'
has yet occurred following the 1954 accident. I am not saying Dr. Levitt, Dr.
Pirie and Dr. Sladden are all wrong in suggesting that leukaemia may result from
fall-out. I am saying that it has not yet occurred, and that Spr. Morris' leu-
kaemia, two months after the November 1957 explosion, was not due to fall-out.
Q. 10. Is it right to say that the whole of your views on this case are based on
the assumption that there was no fall-out on Christmas Island, and that if we are
right in saying that assumption is unjustifiable and that there was some fall-out,
your case falls to the ground
A. 10. I do not agree. I maintain, certainly, that there was no fall-out, but
even if there were, I would still assert that Spr. Morris' leukaemia arose too soon to
be causally connected with it; that it could not have been caused by Strontium 90,
and that I would need to be told a lot more about the degree of fall-out or radi-
ation which you think occurred.
Ministry Representative submitted:
The Tribunal will appreciate that I do not appear before them as an advocate
interested solely in obtaining a favourable decision for the Ministry, but rather
to present and explain the basis on which the Ministry rejected this claim, and to
assist the Court in any way possible to arrive at a correct decision on all the
evidence.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1813

With the Tribunal's permission I would like to begin by dealing briefly with
the law as it relates to cases of what I might call simple leukaemia. This was
laid down in the signpost judgment of Mr. Justice Denning, as he then was, in
the High Court case of KINKAID, Vol. I l l , page 1445 of the Selected Reports
on War Pensions. In that case the Judge said * * * "These cases of leukaemia
show a distressing likeness one to the other. A healthy man is suddenly struck
down with it for no apparent cause and he dies. Most laymen would be prepared
to assert that his dependants should have pensions, because a healthy man is
not likely to be struck down in this way unless it is due to [war] service. The
Minister, however, has rejected the claims, not for any want of sympathy, but
because he is bound by the Warrant to decide according to the certificate of his
medical men * * * Some of the claims have already come on appeal before the
Superior Courts. In considering them the Courts have insisted that the com-
pelling presumption in the claimant's favour should be given its full force and that
no claim should be rejected unless the Minister proves beyond reasonable doubt
that the disease is not due to [war] service * * *. I have stressed my anxiety
to find in the claimant's favour if it were possible to do so, because it is plainly
the intention of the Royal Warrant that the cases should be approached in that
way. Once, however, the evidence shows beyond reasonable doubt that the
disease was not attributable to or aggravated by [war] service there is no option
but to reject the claim. If I were to allow the appeal and award a pension in
this case, it would mean that I should be giving the sanction of this Court to the
principle—"Fit for service: fit for pension" * * *. If sympathy and generosity
were the guide, the principle would have been adopted long ago; but these cases
have to be decided according to the Royal Warrant * * *. So at last we reach
finality in these distressing cases of leukaemia. In order to put them in their
proper perspective, they must be regarded as cases of cancer. Leukaemia is
cancer of the blood. A series of cases have now shown that cancer, as a rule, is
not attributable to or aggravated by [war] service * * * the only cases in which
claims for a pension have been sustained for cancer is when the men were exposed
to radioactive substance, * * * or when there has been aggravation by delay
in diagnosis or treatment due to [war] service."
The Tribunal will observe that, although this judgment is dated 7th May, 1948,
the possibility of an exception to the principle that leukemia was unconnected
with service, was already recognized in the eventuality of exposure to a radio-
active substance.
In the present appeal concerning Spr. Morris, in my submission the only
feature distinguishing it from the principle laid down in Kinkaid's case is that
his leukemia came, on when he was serving on Christmas Island and in close time
relationship to a nuclear explosion.
It is conceded by the Ministry that leukemia can be induced by ionising
radiation. The issue, therefore, resolves itself into the single question—Was it
so brought about in this case by the effects of the nuclear explosion on 8th Novem-
ber, 1957, or by the residual effects of the three preceding explosions on 15th and
31st May and 16th June, 1957? ,
As to the first three, in May and June, 1957, the evidence is that they were all
more than 400 miles away from Christmas Island and that continuous routine
air sampling and fall-out detection apparatus was in use from April 1957 but
showed no fall-out in the area. Spr. Morris did not arrive on the Island until
25th August, 1957.
As to the explosion on 8th November, 1957, the evidence is that it occurred
more than 25 miles away from Spr. Morris; that the meteorological conditions
were such that no fall-out was expected to reach the Island, and measurements,
which are set out in detail in the evidence, showed that such was in fact the case.
It is also established that the neutron and gamma radiation 10 miles distant from
the explosion was appreciably less than that received in a few seconds from
natural causes in any part of the world.
Spr. Morris reported sick on 1st January, 1958, only eight weeks after the
explosion. Acute leukemia was immediately suspected and two weeks later he
was flown home for treatment in hospital which, unfortunately, proved ineffective.
There can thus be no ground for thinking that the course of the fatal disease was
adversely affected by delay in diagnosis or treatment due to service [the only
other grounds mentioned in Kinkaid's case as exceptions to the general rule].
Dr. Levitt, a well known authority on the subject of leukaemia and radiation
and on whose report Counsel for Mr. Morris has relied to a considerable extent
today, withdrew his support for the claim on 2nd May, 1960, after he had been
1814 JUDICIAL REVIEW OF VETERANS' CLAIMS

made aware of the facts disclosed by the War Office, saying "In the light of this
new information the position must be accepted that it is unlikely that deceased
was exposed to either immediate exposure or fall-out to an extent which might
lead to the development of leukaemia".
All the evidence, as it then existed, was put before Professor Sir Brian Windeyer
(a member of the Medical Research Council) on 18th December, 1959, and his
conclusion was "I am of opinion that Sapper Morris' death from acute lymphatic
leukaemia was not due to or accelerated by exposure to gamma or other forms of
radiation directly or indirectly resulting from nuclear explosion".
This Tribunal has had the advantage of hearing the medical views of Col.
Taylor and Dr. Emery, ranging over a wide field, from the significance of Stron-
tium 90 in the bones to land crabs on Christmas Island. It would be presump-
tuous on my part to attempt to assess the weight of this and the other documen-
tary medical evidence, but it is the essence of the Ministry's case that the evidence
of the War Office showing that there was no fall-out or contamination on Christ-
mas Island, has not been contraverted and that, having excluded this possibility,
there is no factor of Spr. Morris' service which could have affected his condition.
Both Dr. Sladden and Dr. Antoinette Pirie state that unassailable proof either
for or against the claim does not appear to be available, and that therefore there
is bound to be an element of doubt, so that a decision in favour of the claim would
be justifiable. The learned President will, I hope, permit me to remind the Court
of the test of reasonable doubt as laid down in the two leading pensions cases—
IRVING (a Scottish decision) in Vol. II at page 412 where the Lord Justice-Clerk
said * * * "The doubt must of course be a reasonable doubt, and not a strained
or fanciful acceptance of remote possibilities. Further, the mere fact that the
case is one of complexity or great difficulty is perfectly compatible with a decision
being reached without reasonable doubt" * * * and MILLER (an English
decision) in Vol. I at page 624 in which Mr. Justice Denning, as he then was,
said * * * "Proof beyond reasonable doubt does not mean proof beyond the
shadow of doubt. The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the evidence is so strong
against a man as to leave only a remote possibility in his favour which can be
dismissed with the sentence 'of course it is possible but not in the least probable'
the case is proved beyond reasonable doubt".
Having carefully considered all the available evidence, the Minister remains
of the opinion that it is established beyond reasonable doubt that Spr. Morris
was not exposed either to radiation or fall-out from nuclear explosions during his
service on Christmas Island, and that his leukaemia was neither attributable to
nor aggravated by any factor of his service.
Mr. Peter Ripman, in his closing address, questioned to what extent a judgment
of 1948 could be relied upon now in a matter concerning leukaemia and radiation,
but observed that the leading medical opinion in KINKAID was given by Sir
Lionel Whitby who was himself a member of the Medical Research Council and
whose collective views he had quoted in support of the appellant today. He
stressed again that there had been no tests for caesium, Iodine, Strontium 89 or
C. 14 and that these were all potentially dangerous substances. There was no
suggestion of criticism in this, either of the War Office or anyone else; it was simply
a commentary on the speed with which knowledge on the subject was advancing
all the time. The so-called conclusive evidence of no fall-out was not to be relied
upon. The Ministry seemed to have concentrated on the explosion of November
1957 and the fact that Morris' leukaemia arose only two months later, but his
case did not stand or fall on that. There may have been dangerous fall-out of
Strontium 89 or the other substances from the earlier explosions in May and
June—if so, the time factor was clearly irrelevant, though he was still contending
that it was fundamentally unsound. Dr. Levitt only said it was "unlikely"
Morris was exposed to fall-out. This case had to be decided on a balance of
probabilities, and even if the burden of proof had rested on the appellant, he would
have discharged it and should get home by a margin.
The Chairman said the Tribunal would wish to consider all that had been said.
He thanked both sides for their assistance, and said the Tribunal's decision would
be given in writing in due course.
N. G. CARTER.
Ministry Representative.
12th December, 1961.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1815

WILLIAM DANIEL MORRIS ON BEHALF OF H I S SON, WILLIAM BRIAN MORRIS

(DECEASED)
DECISION
This is an Appeal by Mr. William Daniel Morris, on behalf of his son, William
Brian Morris (deceased), against the decision of the Ministry of Pensions and
National Insurance that his son's death as a result of "Acute Lymphooytic
Leukaemia", was not attributable to his Army service.
Mr. P. H. Ripman of Counsel appeared on behalf of the Appellant and Mr.
N. C. Carter on behalf of the Ministry of the hearing of this Appeal.
Mr. W. B. Morris was medically examined for enlistment into the Army in
January, 1956. and was placed in Grade II A on account of a foot disability. He
was enlisted and posted to the Royal Engineers on the 1st March, 1956, and on the
18th August, 1957, he emplaned for Christmas Island, arriving there on August
25th.
Prior to his arrival on Christmas Island there had been three explosions of
nuclear devices at least 400 miles distant from the Island; two in May and one
in June, 1957, and on the 8th November, 1957, a further explosion of a nuclear
device, on this occasion in the megaton range, took place. Evidence regarding
the proxijmity to Christmas Island of the last explosion is that it was more than
25 miles away.
On the. 1st January, 1958, Mr. W. B. Morris was admitted into the R.A.F.
Hospital, Christmas Island, with a condition which was provisionally diagnosed
as "Acute Leukaemia", and on the 14th January, he was transferred by air to
the United Kingdom and admitted into the R.A.F. Hospital, Wroughton, on
January 19th. The condition he was suffering from was then diagnosed as
"Acute Lymphocytic Leukaemia". He was invalided from the service as a
result of this condition on the 15th April, 1958, and thereafter received treatment
until he unfortunately died as a result of the condition on the 13th June, 1958.
As already stated, the Ministry maintains that Mr. Morris' Acute Lymphocytic
Leukaemia is not attributable to his Army service, that is to say, no factor of
such service could have had any connection either with the onset or course of the
condition.
For the Appellant it is argued that Mr. W. B. Morris' condition from which
he died was the direct result of the nuclear explosion which took place on 8th
November, 1957.
This Appeal falls for consideration under Article 4(3) of the Royal Warrant,
under which there is a compelling presumption in the Appellant's favour. That
being so, the Ministry has to satisfy us of the correctness of its contention, beyond
all reasonable doubt.
Shortly put, the issues we have to determine on this Appeal are as follows:
(i) whether the nature, type and character of the fatal disease can be
attributed to the effects of ionizing radiation;
(ii) whether the conditions on Christmas Island were such that the
deceased could have been exposed to ionizing radiation, and if the answer
to these two questions is in the affirmative;
(iii) whether the evidence indicates that the deceased was or was not so
exposed.
There was a sharp conflict in the medical evidence. On behalf of the Ministry,
opinions given by Professor B. W. Windeyer, M.B., B.S., F.R.C.S., M.R.C.P.,
D.M., R.E.F.F.R., Consultant Adviser to the Ministry of Health on Radio-
Therapy, and three opinions by the Ministry's Medical Services Division, were
submitted, and Dr. C. W. A. Emery, C.B.E., M.B., B. Ch., gave evidence at the
hearing before us. On behalf of the Appellant, opinions given by Dr. A. F. S.
Sladden, M.D., M.A., Dr. Antoinette Pirie, M.A., Ph. D., and Dr. G. F. Taylor,
M.A., M.B., B. Ch., M.R.C.S., L.R.C.P., (who also gave oral evidence) were
submitted. Mr. Ripman also relied upon certain passages in opinions given bv
Dr. W. M. Levitt, M.D., F.R.C.P., F.F.R., Department of Radio-Therapy,
London Clinic.
The evidence shows that living conditions on Christmas Island left muclj to
be desired, there was a considerable amount of rain, and at times, the tents in
which the troops lived were waterlogged. It is also on record that there were
a considerable number of rats and quantities of land crab on the Island. There
is also evidence that land crabs concentrate Strontium 90 and other fission prod-
ucts in their bodies. It was not contended, however, that living conditions on
 1816 JUDICIAL REVIEW OF VETERANS' CLAIMS

• Christmas Island played any part in the causation or aggravation of the fatal
disease, nor was it seriously suggested that Mr. Morris had eaten land crab,
it certainly was not part of the service diet of the personnel on the Island. We
mention these matters because they form part of the evidence contained in the
Statement of Case, but we are satisfied that they have no revelance to the issues
we have to determine.
After his decease, Mr. Morris' right Femur was sent to the Radio Biological
Research Unit at Harwell, which reported that Strontium 90 analysis of the bone,
based on a single count, gave an upper limit of 0.15 s.u., and there is evidence,
which we accept, that a concentration of 0.15 s.u. would be in the range of normal
levels in the year 1957. We appreciate that radio-active strontium is not a nor-
mal constituent of bone, but are satisfied that the level mentioned was the normal
level that could be expected to be found in human bones in 1957, due, no doubt,
to the various radioactive explosions which have taken place. On the evidence
before us, we think it highly improbable that the level would have been any
different had Mr. Morris never been stationed on Christmas Island.
The nuclear explosions which took place in May and June, 1957, were at least
400 miles from Christmas Island, and on the evidence we do not consider that
there is any reasonable doubt that danger from radiation on that Island, as a
result of these explosions, was any greater than it would have been in the United
Kingdom.
Apart from the findings as a result of the analysis of the bone, referred to
above, it seems clear from the evidence that Strontium 90 from the nuclear
explosion on November 8th, 1957, would not have been a significant factor on
Christmas Island by January, 1958, and we are therefore satisfied that Strontium
90 arising from that explosion can be eliminated as a possible cause of the fatal
disease.
The Ministry submitted in evidence a letter from the War Office, dated 10th
September, 1959, in which it is definitely stated that "Air Sampling and fall-out
detection apparatus has been in continuous routine operation on Christmas
Island since April, 1957", and that "During this period no fall-out has been
recorded". The following passage also appears in the same communication:
"Instruments used to measure neutron and gamma radiation from nuclear
explosions demonstrated that even at only 10 miles from the November 1957
explosion the radiation dose was appreciably less than that which is received in
a few seconds from natural causes in any part of the world. Clearly, therefore, at
distances greater than 25 miles the question of radiation dose to an individual
does not arise. We trust this information will be of assistance to you."
Dr. Taylor said that he found it impossible to accept the War Office statement
that there was no fall-out following the 8th November nuclear explosion, that there
must have been, and that Strontium 89 and radio-active Iodine would have been
present as a result of fall-out. He maintained that these hazards must have been
present and that it was reasonable to think that they were responsible for Mr.
Morris' acute lymphocytic leukaemia.
We have considered all of the evidence with anxious care. We accept the
testimony of the War Office regarding the absence of fall-out and the degree of
radiation in respect to the November 8th nuclear explosion, and have reached
the conclusion that the Ministry have established, beyond all reasonable doubt,
that Mr. Morris was not exposed to either prompt radiation in the form of Gamma
Rays or Neutrons, or to radiation fall-out, as a result of his service on Christmas
Island, in excess of that which he would have received during the same period as
a civilian in the United Kingdom.
We accept Professor Windeyer's opinion that the fatal disease was not due to
or accelerated by exposure to gamma or other forms of radiation directly or in-
directly resulting from nuclear explosion, and although, in view of the conclusions
we have arrived at, the question whether or not lymphocytic leukaemia was
likely to have been induced within a period of two months, does not arise, we
accept Professor Windeyer's opinion that it is highly improbable that it would
be induced in that period.
In conclusion we wish to record our thanks to Mr. Ripman who put the Appel-
lant's case so ably and clearly, and to Mr. Carter, for their assistance at the
hearing of this Appeal.
For the reasons given, we regret that this Appeal must be disallowed.
STAFFORD FOSTER-SUTTON, Chairman.
29th December, 1961.
(Above case included by permission of the chairman of the Tribu-
nal, Sir Stafford Foster-Sutton, K.B.E., C.M.G., Q.C.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1817

LAW CREATING COURT OF MILITARY APPEALS

§ 867. Art. 67. Review by the Court of Military Appeals.
(a) (1) There is a Court of Military Appeals, located for administrative pur-
poses in the Department of Defense. The Court of Military Appeals consists of
three judges appointed from civil life by the President, by and with the advice
and consent of the Senate, for a term of 15 years. Not more than two of the
judges of that court may be appointed from the same political party, nor is any
person eligible for appointment to the court who is not a member of the bar of a
Federal court or of the highest court of a State. Each judge is entitled to a salary
of $25,500 a year and is eligible for reappointment. The President shall designate
from time to time one of the judges to act as Chief Judge. The Court of Military
Appeals may prescribe its own rules of procedure and determine the number of
judges required to constitute a quorum. A vacancy in the court does not impair
the right of the remaining judges to exercise the powers of the court. Upon his
certificate, each judge is entitled to be paid by the Secretary of Defense (1) all
necessary traveling expenses, and (2) his reasonable maintenance expenses, but
not more than $15 a day, incurred while attending court or transacting official
business outside the District of Columbia.
(2) The terms of office of the three judges first taking office after February 28,
1951, expire, as designated by the President at the time of nomination, one on
May 1, 1956, one on May 1, 1961, and one on May 1, 1966. The terms of office
of all successors expire 15 years after the expiration of the terms for which their
predecessors were appointed, but any judge appointed to fill a vacancy occurring
before the expiration of the term for which his predecessor was appointed may be
appointed only for the unexpired term of his predecessor.
(3) Judges of the Court of Military Appeals may be removed by the President,
upon notice and hearing, for neglect of duty or malfeasance in office, or for mental
or physical disability, but for no other cause.
(4) If a Judge of the Court of Military Appeals is temporarily unable to per-
form his duties because of'illness or other disability, the President may designate
a judge of a United States Court of Appeals to fill the office for the period of
disability.
(b) The Court of Military Appeals shall review the record in—
(1) all cases in which the sentence, as affirmed by a board of review,
affects a general or flag officer or extends to death;
(2) all cases reviewed by a board of review which the Judge Advocate
General orders sent to the Court of Military Appeals for review; and
(3) all cases reviewed by a board of review in which, upon petition of the
accused and on good cause shown, the Court of Military Appeals has granted
a review.
(c) The accused has 30 days from the time when he is notified of the decision
of a board of review to petition the Court of Military Appeals for review. The
court shall act upon such a petition within 30 days of the receipt thereof.
(d) In any case reviewed by it, the Court of Military Appeals may act only
with respect to the findings and sentence as approved by the convening authority
and as affirmed or set aside as incorrect in law by the board of review. In a case
which the Judge Advocate General orders sent to the Court of Military Appeals,
that action need be taken only with respect to the issues raised by him. In a
case reviewed upon petition of the accused, that action need be taken only with
respect to issues specified in the grant of review. The Court of Military Appeals
shall take action only with respect to matters of law.
(e) If the Court of Military Appeals sets aside the findings and sentence, it
may, except where the setting aside is based on lack of sufficient evidence in the
record to support the findings, order a rehearing. If it sets aside the findings
and sentence and does not order a rehearing, it shall order that the charges be
dismissed.
(f) After it has acted on a case, the Court of Military Appeals may direct the
Judge Advocate General to return the record to the board of review for further
review in accordance with the decision of the court. Otherwise, unless there is
to be further action by the President or the Secretary concerned, the Judge Ad-
vocate General shall instruct the convening authority to take action in accordance
with that decision. If the court has ordered a rehearing, but the convening au-
thority finds a rehearing impracticable, he may dismiss the charges.
(g) The Court of Military Appeals and the Judge Advocates General shall
meet annually to make a comprehensive survey of the operation of this chapter

80082 O—£2 7
1818 JUDICIAL REVIEW OF VETERANS' CLAIMS

and report to the Committees on Armed Services of the Senate and of the House
of Representatives and to the Secretary of Defense, the Secretaries of the military
departments, and the Secretary of the Treasury, the number and status of pending
cases and any recommendations relating to uniformity of policies as to sentences,
amendments to this chapter, and any other matters considered appropriate
(Aug. 10, 1956, ch. 1041, 70A Stat. 60.)
HISTORICAL AND REVISION NOTES

Revised section Source (U.S. Code) Source (Statutes at Large)

867(a).- 60: 654(a) -

867(b) — 60: 654(b)--
867(c)--. 60:654(c)
867(d) - 50: 654(d)-- May 5, 1950, ch. 169, § 1 (Art. 67), 64 Stat. 129;
867(e) - 60: 654(e) Mar. 2. 1955, ch. 9, 5 l(i), 69 Stat. 10.
867(f) 60: 654(f)
867(g)-- - 50:654(g)

In subsection (a)(1), the word "is" is substituted for the words "Is hereby established". The words "all"
and "which shall be" are omitted as surplusage. The word "consists" is substituted for the words "shall
consist". The word "civil" is substituted for the word "civilian". The word "may" is substituted for the
word "shall" before the words "be appointed". The word "is" is substituted for the word "shall" before
the words "any person". The words "is entitled to" are substituted for the words "shall receive". The
word "is" is substituted for the words "shall be" in the fourth sentence. The word " m a y " is substituted
for the words "shall have power to * * * to". The word "does" is substituted for the word "shall" in the
next to the last sentence. In the last sentence, the words "is entitled * * * to" are substituted for the word
"shall". The word "outside" is substituted for the words "at a place other than his official station. The
official station of such judges for such purpose shall be". The words "also" and "actually" are omitted as
surplusage.
In subsection (a)(2), the words "February 28, 1951," are substituted for the words "the effective date of
this subdivision". The word "shall" in the first sentence, and the word "shall" before the word "expire''
in the second sentence, are omitted as surplusage. The word "before" is substituted for the words "prior
t o " . The word " m a y " is substituted for the word "shall" before the words "be appointed".
In subsection (a)(3), the word "for" is substituted for the words "upon the ground of".
In subsection (b), the words "the following cases" are omitted as surplusage.
In subsections (b) and (d), the word "sent" is substituted for the word "forwarded".
In subsection (c), the word "when" is inserted after the word "time". The words "a grant of" are omitted
as surplusage.
In subsection (d), the word "may" is substituted for the word "shall" in the first sentence.
In subsection (f), the words "Secretary concerned" are substituted for the words "Secretary of the De-
partment".
In subsection (g), the words "of the armed forces" are omitted as surplusage. The words "policies as to
sentences" are substituted for the words "sentence policies". The word "considered" is substituted for
the word "deemed". The words "Secretaries of the military departments, and the Secretary of the Treas-
ury" are substituted for the words "Secretaries of the Departments".
UNITED STATES COURT OF MILITARY APPEALS: RULES OF PRACTICE AND PROCEDURE
See Appendix to this title.
CROSS REFERENCES
Execution of sentence, see section 871 of this title.
New trial, petition for, see section 873 of this title.
Review in office of Judge Advocate General, see section 869 of this title.

§ 868. Art. 68. Branch offices.

Whenever the President considers such action necessary, he may direct the
Judge Advocate General to establish a branch office, under an Assistant Judge
Advocate General, with any distant command, and to establish in that branch
office one or more boards of review. That Assistant Judge Advocate General
and any such board of review may perform for that command, under the general
supervision of the Judge Advocate General, the respective duties' which the
Judge Advocate General and a board of review in his office would otherwise be
required to perform in respect of all cases involving sentences not requiring ap-
proval by the President. (Aug. 10, 1956, ch. 1041, 70A Stat. 61.)
HISTORICAL AND REVISION NOTES

Revised section Source (U.S. Code) Source (Statutes at Large)

50:655_ May 5, 1950, ch. 169, § 1 (Art. 68), 64 Stat. 130.

The word "considers" is substituted for the word "deems". The word "may" is substituted for the
words " shall be empowered to". The word "respective" is inserted for clarity.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1819

CROSS REFERENCES
Review by board of review, see section 866 of this title.
§ 869. Art. 69. Review in t h e office of the J u d g e Advocate G e n e r a l .
E v e r y record of trial by general court-martial, in which there has been a finding
of guilty a n d a sentence, t h e appellate review of which is not otherwise provided
for by section 866 of this title (article 66), shall be examined in t h e office of t h e
J u d g e A d v o c a t e General. If any p a r t of t h e findings or sentence is found un-
s u p p o r t e d in law, or if t h e J u d g e Advocate General so directs, t h e record shall be
reviewed by a board of review in accordance with section 866 of this title (article
66), b u t in t h a t event t h e r e m a y be no further review by t h e C o u r t of Military
Appeals except u n d e r secton 867(b)(2) of this title.

[Excerpt from February 1953 Issue of the Vanderbilt Law Review, quoted with permission]

T H E C O U R T OF M I L I T A R Y A P P E A L S — I T S H I S T O R Y , ORGANIZATION AND
OPERATION
l
(By Daniel Walker a n d C. George Niebank 2)
When a civilian "supreme c o u r t " for t h e review of court-martial conviction^
was first proposed in Congress, it evoked immediate, vociferous a n d emotiona
reactions from those m o s t directly concerned with military criminal law. Vigor-
ous opposition came from t h e traditional militarist, who argued t h a t there was no
place for civilians in a military procedure, and t h a t creation of such a court would
place unnecessary emphasis on civilian influence. I t was said t h a t military
effectiveness would be unduly restricted and t h a t t h e nonmilitary mind would
n o t be able to appreciate fully t h e military problems often involved in court-
martial cases. Some of these officers also predicted t h a t such a court, organized
along traditional appellate lines, would not be able to cope with t h e t r e m e n d o u s
volume of cases t h a t would come before it.
On t h e other side were t h e a d h e r e n t s of t h e C o u r t proposal—composed princi-
pally of civilian lawyers a n d veterans, speaking t h r o u g h their national organiza-
tions, who had, from experience, acquired a distaste for Yhe court-martial system.
Congressmen representing this viewpoint hailed t h e C o u r t as t h e " m o s t vital
e l e m e n t " in t h e reformation a n d unification of military criminal law b r o u g h t
a b o u t b y t h e Uniform Code of Military Justice. I t was s t a t e d t h a t t h e legislation
creating t h e C o u r t embodied t h e " m o s t revolutionary changes which h a v e ever
been incorporated in our military law."
T h e C o u r t has now been in existence for something more t h a n a year. E n o u g h
t i m e has passed to enable t h e interested, nonprejudiced observer to form a pre-
liminary evaluation of this new addition to t h e judiciary. H e will probably con-
clude t h a t t h e actual result—as is usually the case—lies somewhere between t h e
pre-birth claims a n d a r g u m e n t s of t h e proponents and opponents.
T o others m u s t be left t h e task of examining for this symposium t h e principal
p r o d u c t of t h e Court—its written opinions. In this article we propose t o spell
o u t its development, organization a n d operation. T a k e n together with t h e infor-
m a t i o n concerning t h e Code and t h e C o u r t appearing elsewhere in this issue, it
m a y enable t h e reader to form a preliminary j u d g m e n t as to t h e desirability a n d
efficacy of civilian review of court-martial convictions.

HISTORICAL BACKGROUND

T o u n d e r s t a n d t h e operation of t h e Court, it is necessary t h a t it be placed in

context, t h a t it be considered in light of t h e historical development of t h e concept
of post-trial review of court-martial convictions. T h e C o u r t is, of course, t h e
p r o d u c t of a reform movement, and, as such, did not come i n t o being overnight,
b u t was produced by t h e slow-working catalyst of experience. I t s roots lie in
t h e historical development and i m p r o v e m e n t of military criminal law, a history

i Commissioner, United States Court of Military Appeals; member, Illinois Bar; formerly law clerk to
Chief Justice Fred M. Vinson. The editors of the Vanderbilt Law Review wish to acknowledge and
express their appreciation for the service Mr. Walker has rendered in the planning and execution of this
Symposium.
• Commissioner, United States Court of Military Appeals; member, New York Bar; formerly law clerk
to Mr. Justice Robert II. Jackson.
1820 JUDICIAL REVIEW OF VETERANS' CLAIMS

that is marked by repeated conflicts between military commanders and interested

civilians. These conflicts were, however, relatively minor altercations until the
twentieth century, when large citizen armies in two World Wars brought millions
of Americans, including many lawyers, into initmate contact with the court-
martial system.
As is well-known, courts-martial have traditionally been regarded as a discipli-
nary command function. They have long been thought by the military—and
some apparently still hold to this view—to be not courts at all, but agencies of
the commander to investigate facts and recommend disciplinary action. In
practice, there was little inclination to give undue consideration to rights of
accused persons. All who have been in the service know of the sometime preva-
lent view that ' 'only the guilty are brought to trial anyway, so why bother about
the formalities." Until relatively recent years, courts-martial were governed
not by principles of law, but by the whims and desires of the commander who
appointed the court. As the Judge Advocate General of the Army put it in 1919,
"The fittest field of application for our penal code is in the camp. Court-martial
procedure, if it is to attain its primary end, discipline, must be simple, informal,
and prompt * * *."
This emphasis upon quick and effective punishment for wrongdoers naturally
carried with it opposition to the introduction of effective and thorough legal
appellate review of court-martial convictions. From 1776 to the First World
War, post-trial review was limited in most cases to the action of the "convening"
or "appointing" authority—the military commander who appointed the court.
Only dismissed officers, general or flag officers and those under penalty of death
were entitled as of right to high-level post-conviction review. Even after The
Judge Advocate General of the Army assumed the power to review all general
court-martial cases during World War I, his action was limited to making "recom-
mendations" to the convening authority—recommendations which that officer
could—and quite often did—reject if he so desired.
Civilian concern became a major factor during the First World War. Congress
made an exhaustive study of the system and in 1920 made substantial changes,
some of which merely codified improvements effected through administrative
action during the war. Statutory authority was provided for creation of service
Boards of Review in the office of The Judge Advocate General of the Army.
These boards were required to review all court-martial convictions that resulted
in sentences including disciplinary discharges, confinement for one year, or
anything more severe. It was also required that a convening authority obtain
the advice of his legally trained staff officer before taking post-trial action on any
case. These were major steps forward, but it should be noted that these changes
affected only the Army. The Navy operated under an almost completely un-
altered set of Articles for the Government of the Navy from 1862 until the Uni-
form Code of Military Justice became effective in 1951.
Unfortunately, the 1920 changes, even with minor amendments made between
then and the inception of World War II, did not remove all, or even most, of the
system's deficiencies. Many accounts of injustices, not remedied on review, be-
came public during the late war. Civilian lawyers in uniform were appalled at
the operation of the military criminal system. Most vigorously criticized of all
was the concept of "command control." Many observers—and participants—felt
that giving to one officer the power to decide which cases should be tried, which
court they should be referred to, which officers should sit on the court, which
officers should represent the Government and the accused, and which cases should
be approved or disapproved on review, was completely indefensible. It was
pointed out that the future careers of officer-participants in the criminal prosecu-
tion scheme were dependent, to a great extent, upon the convening authority.
By controlling privileges, duties, promotions and fitness reports, he could effec-
tively control any court created under his command.
Bar associations and veterans organizations became aroused as never before.
The first result was a series of studies initiated by the military and by Congress,
which culminated in the Elston Act of 1948, applying to the Army many of the
reforms later made applicable to all the services by the Uniform Code of Military
Justice. After a year of operation under this statute, Congress deliberated on and
passed the Uniform Code of Military Justice, which provided the new addition
to the judiciary, the "GI Supreme Court."
As already noted, the Court was not created without considerable conflict.
At the time of its creation, there already existed in The Judge Advocate General
of the Army's office a Judicial Council—a "super" Board of Review. Many of
 JUDICIAL HE VIEW OF VETERANS' CLAIMS 1821

the military witnesses before Congress advocated that such a judicial council be
made the top reviewing authority under the Uniform Code. Others proposed
that the three Judge Advocates General sit together as the supreme reviewing
agency. Many proponents of the Court wanted it to be civilian and to have
jurisdiction—automatic—over all court martial convictions, with power to con-
sider both questions of law and fact. This latter proposal met considerable
opposition, both from those who wanted to limit the power of the Court and from
those who genuinely felt that such broad jurisdiction would so overburden it with
cases that it could not properly perform its primary function as a body to enun-
ciate carefully and soundly reasoned principles of military law, much less act in
any supervisory capacity over the operation of the new Code.
ORGANIZATION AND JURISDICTION
The final result was something of a compromise. The civilian court was
created, but its jurisdiction, as will be noted in detail later, was somewhat limited.
The law provides for three judges on the Court—each to be appointed by the
President from civilian life for terms of fifteen years—the first three to have stag-
gered terms of fifteen, ten and five years. There is no requirement of—nor any
prohibition against—prior military service by the appointees. The three judges
chosen by President Truman are Chief Judge Robert E. Quinn, Judge George
W. Latimer and Judge Paul W. Brosman. Chief Judge Quinn previously served
as Governor of Rhode Island, as a Judge of the Rhode Island Superior Court, and
has acted as a Navy legal officer during World War II. Judge Latimer came to
the Court from his position as a Justice of the Supreme Court of Utah. Prior to
that, he had served as a Colonel in the Field Artillery and General Staff Corps of
the National Guard and Army of the United States. Judge Brosman was formerly
Dean of the Tulane Law School and has a military background as an Air Force
Judge Advocate.
The jurisdiction of the Court is limited. An accused can petition for review
from a Board of Review decision if the sentence, as finally approved, extends
to a bad conduct discharge or confinement for one year or more. The Court has
discretion to grant these petitions on "good cause shown." The Judge Advocate
General of a service (and the General Counsel of the Treasury Department,
acting in peacetime for the Coast Guard) may certify to the Court any decision
of a Board of Review. Hearing is mandatory in these cases. Finally, cases with
sentences involving the death penalty or affecting a flag or general officer must
be reviewed. The Court's action is limited to questions of law, and, on factual
issues, to the usual standard of appellate review.
The Court is located in Washington, D.C., in the building formerly occupied
by the United States Court of Appeals for the District of Columbia Circuit.
It is placed, by statute, in the Department of Defense, but for administrative
purposes only; judicially, it is independent. Presently it is staffed by approxi-
mately 40 employees. Its organization can best be explained by following a case
through the various channels.
After a Board of Review has passed on—and affirmed—a court martial convic-
tion, the accused is notified of the decision. He is told, in writing, of his right to
petition the Court of Military Appeals for review within 30 days. If he decides
to exercise this right, the petition is filed by appellate defense counsel from the
office of the Judge Advocate General of the service concerned or by civilian counsel
retained by the accused. Sometimes—but not always—this will be the same
counsel who represented him before the Board of Review. Counsel must file
with the Court, as required by its rules, a petition setting out the facts of juris-
diction together with a short frief containing the issues of law, appropriate cita-
tions and necessary arguments. Appellate Government counsel, also appointed
by the Judge Advocate General, is thereafter allowed 15 days to file an answer
to the petition.
Once the petition and answer have been received, the briefs and record are
forwarded to the Commissioners' office. The Court has, by statute, 30 days in
which to dispose of the petition. Customarily, the Commissioners prepare memo-
randa on the case for circulation along with the record and allied papers to the
three judges. Aiding the Commissioners in this task is a staff of several Legal
Assistants. Not content with relying solely upon service review, the Court insists
that in this preliminary stage each record be carefully scrutinized for errors
possibly overlooked by counsel. A substantial number of cases have already
been decided on issues raised by the Court itself.
 1822 JUDICIAL REVIEW OF VETERANS' CLAIMS

The Court, of course, makes the decision whether to grant or deny the petition—
a majority vote controlling. If it is denied, the accused and the service concerned
are notified and the case is completed. If the petition is granted, the Court may
specify an "open" grant, or it may limit argument to certain specified issues.
The order granting is sent to the service and a copy to the accused. Counsel
are then required to file formal briefs on the issues. After the briefs are in, the
case is set for oral argument in the usual appellate manner. Prior to argument,
the Commissioners again carefully peruse the record and prepare a hearing
memorandum for the Court.
Following oral, argument, a decision is reached by the judges in conference,
and the opinion is assigned to an individual judge for preparation. Of course,
there occur on this Court like any other appellate court the usual shifts between
majority and dissent after assignment and before final publication.
Cases involving mandatory jurisdiction—certificates from the judge advocates
general, death cases and cases involving general and flag officers—are handled in
the same way, except that the petition stage is omitted. As soon as the initial
papers are received and the briefs filed, the case is set down for argument.
The Court is limited in the action it can take on a given case. Laying aside
affirmance, several possibilities are present. It can reverse and order the charges
dismissed, it can order a rehearing, or it can send the case back to the Board of
Review for further action. Neither of the latter two courses of action can be
followed if the Court finds insufficient evidence, as a matter of law, to support the
conviction. In that situation, the charges must be dismissed, for the military
procedure—unlike the civilian—does not permit a new trial in such a case. Gen-
erally, for prejudicial procedural error, the court will order a rehearing. If a valid
finding of a lesser offense can be affirmed, or if the sentence is illegal, the court will
return the case to the Board or Review for further action. However, ordering a
rehearing does not mean that one must be held. The Code vests this decision in
the discretion of the convening authority—if that official decides that a rehearing
is impractical, he may order the charges dismissed.
Another branch of the Court's jurisdiction consists of petitions for new trial,
based on newly discovered evidence of fraud on the court. Such petitions must
be considered by the Court if the case is otherwise in its hands for review, and it
may be called upon to consider additional evidence to decide whether there is
sound reason to order a rehearing.
One of the most important functions assigned to the Court is that of joining
with The Judge Advocates General of the Armed Forces in making an annual
report on the operation of the Code to Congress, to the Secretary of Defense, and
/to the Secretaries of the Service Departments. The report is required to include
statistics concerning pending cases and such recommendations as the judges and
Judge Advocates General deem appropriate.
To date, one supplemental report containing statistics on the Court's operations
and one formal report have been filed. The latter was divided into several
sections—a joint report, followed by separate reports for the Court and each of
the services. In the joint report, it was noted that insufficient facts were avail-
able, due to the short period of operation of the Code and the Court, to enable
the presentation of positive recommendations concerning the many points of
controversy. Among those mentioned—but passed—were an appellate procedure
for handling the increased work load that would result from war or national
emergency; creation of a separate Judge Advocate General's corps for the Navy
and Air Force; creation of noncommand channels for processing fitness, efficiency
or effectiveness reports; convening of courts by others than commanding officers;
further limitations on command control; return to the prior law member pro-
cedure; and expanded factual and sentence review jurisdiction for the Court.
The joint report did make two positive recommendations: (1) that special courts-
martial be prohibited from adjudging bad-conduct discharges; and (2) that the
report be made due at the close of the calendar year, rather than as of May 31st
of each year. The separate service reports as well as that for the Court contained
detailed statistics and general information concerning operations. The Navy
noted its opposition to the recommendation concerning sentence powers of special
courts-martial.
It is to be anticipated that the next annual report—to be filed on May 31, or
December 31, 1953, depending on whether Congress adopts the filing recom-
mendation—will contain many more extensive and controversial recommenda-
tions. The Court has already commenced laying the groundwork for the next
report by creating a civilian committee to investigate and study Code operations
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1823

and return appropriate recommendations. It is thought that this committee will

be especially helpful in obtaining the benefit of the knowledge, thought and
experience of the civilian bar.
STATISTICAL 8EVIEW OF OPERATIONS

A consideration of the work of the Court at this date requires some statistical
information in the interest of thoroughness and for what it may contribute to a
comprehension of the scope of its labors in the sphere of military law administra-
tion, as well as an understanding of the physical burden it carries.
The first case to reach the Court was United States v. McSorley (1), 1 CMR 84
(USC MA 1952), which was docketed July 8, 1951, some five weeks after the effec-
tive date of the Uniform Code of Military Justice, May 31, 1951. September 7,
1951, marks the date of the first arguments heard by the Court, and United States
v. McCrary (4), 1 CMR 1 (USCMA 1952), enjoys the distinction of being the first
case argued. The McCrary case was also the first to be decided; the decision
therein was handed down November 8, 1951. Undoubtedly the McCrary case
caused some immediate apprehension in those following the course of the Court,
for, rather than being a unanimous decision, it provoked separate expressions from
each of the three judges. Judge Latimer announced the judgnient of the Court
and an opinion of his own; Judge Brosman concurred in part with Judge Latimer
and in part with Chief Judge Quinn, who dissented. The succeeding months have
demonstrated, however, that McCrary was not a portent of things to come, for
the degree of unanimity, generally speaking, has been high.
From the date the McSorley case was filed, July 8, 1951, through and including
November 1, 1952, 1730 cases were received by the Clerk's office. Of these, 1633
were received solely by petition of the accused, 87 by certificate of a Judge Advo-
cate General, and 10 were cases in which the death penalty had been imposed.
Although the figure fluctuates a bit, the Court is currently granting review in
about 15 per cent of the petition cases. On November 1, 1952, final action had
been completed in 1298 of the 1730 cases filed. As all would expect because of
its predominance in number of men, the Army has been the source of many more
cases than any other Service. The Navy, the Air Foroe and the Coast Guard
follow in that order. Geographically, the overseas commands, particularly Korea,
have produced far more cases than units located in the continental United States.
Although no precise figures are available, it is roughly estimated that only
about 10 per cent of the cases decided by the Boards of Review are brought to
the Court. Why the figure is so low can only be the subject of speculation. In
some of the cases, the sentence has been remitted or served and there is no desire
for futher review. Undoubtedly, a great number are of the "open and shut"
variety in which it is obvious to anyone that a petition would be futile. In others,
where accused has been sentenced to a punitive discharge, he may not want to
have execution of the discharge delayed, preferring to get out of service as soon
as possible no matter what the conditions. Finally, some accused may have re-
ceived misguided advice, or may not know or understand the Court's functions
and powers. It is quite likely that as more and accurate information about the
Court filters through the services greater numbers of accused may seek review,
increasing the Court's burden over what it is now.
The heavy filing of cases has produced a commensurately large number of
opinions. By November 1, 1952, the judges of the Court had delivered written
opinions in 161 cases, with only seven cases pending decision from the first term's
work. Of these, 152 concerned enlisted men, seven involved commissioned
officers and two were cases of civilians subject to the Code. Obviously, the
per-judge work-load has been very heavy. Without going into a comparative
statistical examination of the labors of other appellate courts here, it is a fact
that the Court's burden is at least one of the heaviest of the appellate courts in
the country. Although figures sometimes are deceiving mirrors of fact, we may
say from personal experience that these figures present an accurate picture—the
Court is a very busy organization.
Of the 161 cases decided, the result in 71 was distinctively to the advantage of
the accused, ranging from outright dismissal of the charges to remand to a Board
of Review to correct an error in sentence. In a number of others, error was
found but not regarded as presenting a fair risk of "material prejudice to the
substantial rights" of the accused.
Accused persons have the right, at their own expense, to have their cases pre-
sented to the Court by civilian counsel. Relatively few have taken advantage
 1824 JUDICIAL REVIEW OF VETERANS' CLAIMS

of the right, probably because of the expense element involved. Civilian counsel
who have appeared have not—for the most part—evidenced any undue strange-
ness in their venture into military law. And, in truth, there is little reason why
they should, for the Code and Manual have brought to the military procedures
and concepts entirely similar in most essential respects to those well-known on
the civilian scene. One short-coming evidenced by privately-retained counsel is
lack of familiarity with the Court's opinions. It is expected that this difficulty
will be alleviated shortly, for the Lawyer's Co-operative Publishing Company of
Rochester, New York, has undertaken to publish the Court's opinions in the
customary form.
By November 1, 1952, 244 civilian lawyers had been admitted to practice
before the Court. One might suppose that most of those retained would be from
Washington, and percentage-wise that is so. However, already lawyers from
points scattered around the country have appeared, so that the Washington bar
certainly has no monoply in the field. Accused and their families everywhere
would naturally tend to turn first to an attorney in their own community, so no
one practicing law should be surprised to have a court-martial case come to
his office.
Service officers assigned by the several Judge Advocates General to represent
accused before the Court have done well. Their labors, taken together with
those of the Judges, Commissioners and Legal Assistants of the Court, assure a
most thorough and extensive consideration of every case. The staffs of the Judge
Advocates General are not large, and their burden is heavy, for they must provide
representation not only for the accused but also for the Government, and not
only before this Court but also before the Boards of Review. The latter, of
course, consider many more cases than reach their Court, this mandatory
jurisdiction being much broader.
Since comparatively few cases that have come to the Court resulted in an
outright dismissal of charges, most reverals have contemplated further action.
Often the action remaining to be taken is purely corrective. Thus, a Board of
Review may be required to reduce a sentence to comply with the maximum
applicable to the offense in question, or it may be directed to find accused guilty
of an offense that is lesser included within that of which he had been charged and
convicted. In a number, however, rehearings have been ordered. Although as
noted previously, the final decision to hold a rehearing rests with the convening
authority who has the option of dismissing the charges, rehearings actually are
held in a substantial number of cases in which they have been ordered. They
pose problems of the same nature encountered in re-trials of civilian criminal
prosecutions, though often to a much more formidable degree. Because of the
mobility of military units, and, to an even greater extent, of individual personnel,
by the time a case has run the gamut of appellate review to and through this
Court, the witnesses have often scattered so widely that it would be immensely
difficult, if not impossible, to reassemble them for another trial. And because
an accused has usually been returned to the United States after a conviction
overseas, to secure the presence of foreign civilian witnesses at retrial of such a
case, they would either have to be brought here or the trial brought to them.
Furthermore, where an offense was committed in a combat area, the accentuated
hazards to witnesses, both military and civilian, cannot be discounted. For
these reasons, many rehearings are heard "on the record" of the first trial, bound
by the usual rules governing use of testimony at a former trial. Such "warmed
over" testimony, as all familiar with the judicial process know, can never be as
satisfactory as that received from the lips of a witness present in court. How
such proceedings succeed in practice we are not in a position to say. But they
should not be too severely criticized, for they are probably the best solution to
an awkward and difficult situation.

THE COURT'S DECISIONS

To date, the Court has passed on a wide variety of legal issues arising in the
field of military criminal law. An analysis of its major opinions is presented else-
where in this symposium, but a brief consideration of the general content of its
work is within the scope of this article.
Recognizing the difficulty and danger of generalizing,, the opinions of the Court
may be roughly said to fall within three major categories: problems of procedure,
issues concerning rules of evidence and factual controversies. So far as the area
of procedure is concerned, most of the cases involved either transitional problems
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1825

created by the change in law or the Code provisions which made radical changes
in the preexisting procedure. The latter have been particularly troublesome. A
disproportionately large percentage of the Court's cases have involved the duties
and responsibilities of the law officer—now, for the first time, divorced from partic-
ipation in the deliberations of the court, and charged, in most essential respects,
with the duties of a civilian judge. The requirement that the law officer instruct
the trial court-martial on the "elements of the offenses charged" has been the
subject of a great many opinions. This will, without doubt, continue to provide
a plentiful source of error for defense counsel until such time as all court-martial
personnel become thoroughly indoctrinated in the new procedure. Ultimately,
when the present opinions relating to the technicalities of giving instruction have
served their purpose, the only issues relating to instructions will probably turn
on the correctness of the law officer's statement of the law.
Another procedural problem—which also relates to rules of evidence—is the
matter of prior convictions. Where two or more previous convictions of an
accused during his current enlistment and within three years of the date of com-
mission of the offense in question are proved, those prior convictions have a
direct bearing on the maximum sentence imposable. If the maximum for the
offense of which he is convicted does not include a punitive discharge and does
not include confinement for three months, the court may, because of the two or
more previous convictions, adjudge a bad-conduct discharge and confinement for
three months. Almost all of the numerous cases involving prior convictions have
turned on the manner of proof. Trial counsel seemed to have the impression that
the ordinary standards of proof did not apply to previous convictions. In its
opinions, however, the Court has repeated again and again that there are no dis-
tinctions available. This is one current problem that will very likely disappear
completely as the procedure becomes one of settled practice.
In several cases the Court has stricken down convictions where the record of
trial disclosed that the law officer had conferred with the court out of the pres-
ence and hearing of accused and his counsel. This point of error, like the matter
of instructions, stems from the Code's imposing on the law officer the unfamiliar
robes of a civilian judge, and may be expected to fade as the new procedure loses--
its novelty.
The cases involving rules of evidence have presented some of the Court's most
serious challenges. It is obviously impossible to set forth, in one volume the size
of the Manual for Courts-Martial, all the detailed rules of evidence that may
arise in criminal courts. The outline of evidence law contained therein presents
little more than a guide to those involved in trying cases, and certainly does not
settle many of the issues that arise and ultimately reach the Court. So also, the
non-legally trained officers participating in special courts-martial cannot be ex-
ected to grasp the complexities of the rules of evidence. It is this area that
E rings to the Court some of its most difficult tasks—and, incidentally, provides
some of the most satisfying results. Where the Code and the Manual are silent—
or inconclusive—on a given point, the Court is free to apply that rule which seems
best. Guided by the rules applied in civilian jurisdictions, particularly in the
federal courts, it can pick and cnoose to find the one best suited for court-martial
procedure. In so doing, of course, it must ever bear in mind the differences ex-
isting between the civilian and military communities, and the peculiarities incident
to court-martial trials. It is, however, a refreshing challenge to be relatively free
of the dictates of precedent in deciding both upon the rules of evidence to be
applied and the limitations to be placed on those rules.
Finally, many cases before the Court have turned in whole or in part on suffi-
ciency of the evidence to support the conviction. The Court has adopted in this
area a rather strict test, which has evoked some vigorous dissents. In evaluating
the net effect of the evidence in the record, the Court often is presented with the
disturbing situation of an evidentiary failure which it is clear, either from its very
nature or the "allied papers" in the record, could have been completely taken care
of at the trial level. Both trial and defense counsel frequently fail to present all
the evidence apparently available to them, and a measurable share of the Court's
burden would be alleviated if counsel would take it upon themselves to present
the most complete case possible. In a long range view of military decisional law,
the Court's pronouncements on sufficiency of evidence, once the applicable stand-
ard for review was formulated, are of marginal value only. I t is, however, im-
portant in the sphere of military justice that all realize that the Court can and will
review sufficiency of the evidence, for its hovering presence in that aspect of every
case will serve as a significant check on arbitrary judgement based on flimsy
1826 JUDICIAL REVIEW OF VETERANS' CLAIMS

evidence. And certainly, so long as the Court has the power to reappraise the
total evidentiary picture in cases coming before it, a considerable portion of its
efforts will be devoted to doing so.
The remaining opinions of the Court, not susceptible of categorization, have
involved various matters, some very minor from the point of view of establishing
a substantive body of law, and others undoubtedly of great importance, such as
the extent of the serviceman's guaranty against double-jeopardy and the amena-
bility of civilians abroad to trial by court-martial.
THE COURT'S FUTURE
I t is much too early to make any definite prophecy as to the role the Court will
play in the years ahead. Much depends on the extent to which the services be-
come accustomed—or resigned—to effectuating the modernized policy of the
Uniform Code of Military Justice. In evaluating the Court's future operations,
however, it should always be remembered that it is a court of law—intended by
Congress to act in a dual capacity. First, it has the task of building a single,
unified framework of the principles of military criminal law, a framework within
which the court-martial system can function efficiently. Second, it must ensure
that justice is done in each case that comes before it.
The extent to which it can carry out its first responsibility will of necessity
depend to a great degree on the assistance received from the services. The
Boards of Review can help by writing opinions directed to broad principles of law,
The Judge Advocates General by using care in selecting the issues to be certified
to the Court, and appellate counsel by developing more fully in their briefs and
arguments basic concepts of policy and principle, stressing not only the rules but
the reasons behind the rules. It is to be hoped that the services will, in the future,
become more accustomed to the concept of appellate review as it is known in the
civilian judicial system. This process will undoubtedly be hastened as traditional
military concepts of court-martial review fade into oblivion. In the future, there
should be a lessening of the disagreement—prevalent in some military circles—
with the view that the Court should ever be deeply concerned with establishing
sound and enduring principles of law without regard to the effect that such prin-
ciples may have on the individual case before the Court. The military has long
tended to emphasize the importance of the individual case, failing to recognize
that, if appellate agencies establish a sound framework of law and trial authori-
ties endeavor to work within that framework, disposition of individual cases be-
come much simpler.
It is also vitally important that decisional law be disseminated past reviewing
authorities. Those men directly concerned with the trial of cases must use the
decisions of the appellate tribunals as working tools. Too long has the military
trial system been one of virtually naked ritual. Unless trial lawyers and law
officers in the field have available the appellate opinions and make a consistent
effort to understand both the principles enunciated and the reasons behind them,
the work of the Court of Military Appeals will not attain its maximum possible
effectiveness.

T E N - Y E A R CHRONOLOGY OF THE UNITED STATES COURT OP MILITARY APPEALS

(Prepared by Frederick R. Hanlon, deputy clerk)
The Uniform Code of Military Justice (10 USC § 801) became law on May 5,
1950. This Code had a profound effect on the judicial system of the Armed
Forces of the United States. It unified the services in the field of military justice'
for the first time in history. The Code did not become effective until May 31,
1951, thus giving each service ample opportunity to prepare for the changes which
were to take place.
The Code evolved really as a result of public clamor after World War I at which
time many apparent or actual injustices were brought to light. At that time some
major changes were made in the system and, in general, public concern over such
problems dissipated. In the short span of years between World Wars I and II
minor changes were made but with the advent of World War II it became very
obvious that drastic changes and improvements were in order. The public
became aware of many miscarriages of justice both through the press and through
information received from relatives in the armed forces. For the first time since
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1827

the Civil War almost every family in the Nation had a personal stake in the sol-
diers, sailors, and marines who were doing battle for the survival of a free world.
As a result, more and more people became aware of the importance of a judicial
system which while adequate to maintain military discipline, nevertheless would
give rights to those accused of crime closely paralleling the rights enjoyed by the
civilian community. The Uniform Code of Military Justice was designed to
perform this function.
One of the most significant accomplishments of the Uniform Code of Military
Justice was the establishment of a supreme court of the military composed entirely
of civilians. The United States Court of Military Appeals, presently located at
5th and E Streets, N.W., Washington, D.C., is that Court.
To this military tribunal President Harry S. Truman appointed three men from
civilian life. The Chief Judge was Robert E. Quinn, former Governor of Rhode
Island and judge of the Superior Court in that State. Chief Judge Quinn was
given a fifteen-year term of office. Associate Judge George W. Latimer was
appointed for a term of ten years and Associate Judge Paul W. Brosman received
the five-year appointment. All subsequent full appointments were to be for a
term of fifteen years. The reason for the staggered terms was to avoid the
possibility of two or more terms expiring at the same time.
Chief Judge Robert E. Quinn was nominated as Chief Judge of the Court by
President Truman on May 22, 1951, for the term expiring May 1, 1966. He was
confirmed by the Senate on June 19, 1951, and he took the oath of office June
20, 1951.
Chief Judge Quinn was born in Phenix, Rhode Island, on April 2, 1894. He
received a Bachelor of Arts Degree from Brown University in 1915 and a Bachelor
of Laws Degree from Harvard University in 1918. He was admitted to the Rhode
Island Bar and was a practicing attorney in Providence, Rhode Island, from 1917
until he entered public office. He was a member of the United States Diplomatic
Intelligence Service in England and France from 1917 to 1919, a member of the
Senate of the State of Rhode Island from 1923 to 1925 and from 1929 to 1933.
He served as Lieutenant Governor of Rhode Island from 1933 to 1936, and as
Governor of that State from 1937 to 1939. He became a judge of the Superior
Court of Rhode Island commencing on May 1, 1941, and he served as legal
officer of the First Naval District from 1942 to 1945. In 1943 Judge Quinn was
requested by Secretary of the Navy Forrestal to collaborate with Arthur Ballan-
tyne, Esquire, of New York in reviewing the Articles for the Government of the
Navy. In 1944, he was sent to the Pacific Ocean Area by Secretary Forrestal
to adjust certain extraterritorial problems with New Zealand, Australia, and
other nations, and to study the operation of military justice in that area. He
was attached to the U.S.S. Miza and was recommended by Admiral Thomas L.
Gatch for the Legion of Merit for "giving advice and instruction on ships and
stations in the Pacific Ocean Area, in combat areas, and during combat . . ."
He was awarded the Commendation Medal and ribbon by Secretary Forrestal
and also by Secretary Matthews. In addition, he was cited by the United States
Army for Distinguished Service. Judge Quinn is a member of the Democratic
Party.
Judge George W. Latimer was nominated by President Truman as judge of
the United States Court of Military Appeals on May 22, 1951, for the term expir-
ing May 1, 1961. His nomination was confirmed by the Senate on June 19, 1951,
and he took the oath of office on June 20, 1951.
Judge Latimer was born in Draper, Utah. He attended grade schools in Salt
Lake City, Utah. He received a Bachelor of Laws Degree from the University
of Utah in 1924. He was a practicing attorney in Salt Lake City from 1925 to
1940 and from 1945 to 1946. He enrolled in the Reserve Officer Training Corps
at the University of Utah in 1920. He was commissioned in the National Guard
in 1925 and served that organization in all ranks from second lieutenant to colonel,
He was inducted into the Federal service as division staff officer of the Fortieth
Infantry Division in February 1941. He was promoted to colonel and became
chief of staff of the division and served in that capacity while the division was in
Hawaii, Guadalcanal, New Britain, and Luzon, Negros, and Panay, Philippines.
He engaged in combat in those areas in 1944 and 1945 and was awarded three
battle stars and the Legion of Merit for duty while in combat. He was relieved
from active duty in November 1945. Judge Latimer was elected to the Supreme
Court of the State of Utah in 1947 for a ten-year term and served until June 1951
at which time he resigned to accept the appointment to the United States Court
of Military Appeals. Judge Latimer is a member of the Republican Party.
1828 JUDICIAL REVIEW OF VETERANS' CLAIMS

Judge Paul W. Brosman was nominated as a judge of the United States Court
of Military Appeals on May 22, 1951, for the term expiring May 1, 1956. He was
confirmed by the Senate on June 19, 1951, and he took the oath of office on June
20, 1951.
Judge Brosman was born in Albion, Illinois, on November 9, 1899. He re-
ceived a Bachelor of Arts Degree from Indiana University in 1926, a Bachelor of
Laws Degree from the University of Illinois in 1924, Doctor of Juridical Science
Degree from Yale University in 1929. He was admitted to law practice in
Illinois in 1924 and Louisiana in 1942. He was an instructor in business law at
Indiana University in 1924 and 1925 and an assistant professor at the same uni-
versity in 1925 and 1926. He was professor of law at Mercer University from
1926 to 1928, a Sterling Fellow in Law at Yale from 1928 to 1929 and professor
of law at Tulane University from 1929 to 1932. Between 1932 and 1951 he was
professor of law, assistant dean, and dean at Tulane University Law School.
Judge Brosman served as a private in the United States Army in World War I.
He was commissioned a major in the Army in 1942 and was assigned to the Army
Air Force. He was chief of the Military Justice Division, Office of the Air Judge
Advocate, Continental Air Command, Mitchel Air Force Base, Long Island, in
1950 and 1951. He was awarded the Legion of Merit. Judge Brosman was a
member of the Democratic Party.
The Uniform Code of Military Justice, the law which established the United
States Court of Military Appeals, specifically provided that not more than two
of the judges of the Court could be appointed from the same political party, nor
would any person be eligible for appointment to the Court who was not a member
of the bar of a Federal court or of the highest court of a state. The Congress also
gave to the President of the United States the prerogative to designate from time
to time one of the judges as Chief Judge. From the date of original appointment
to the writing of this chronology, July. 1961, Robert E. Quinn has been the Chief
Judge.
The Code also provided that "If any judge of the Court of Military Appeals is
temporarily unable to perform his duties because of illness or other disability,
the President may designate a judge of the United States Court of Appeals to fill
the office for the period of disability." The President, to date, has not exercised
this right.
The judges, having taken the oath of office on June 20, 1951, established on
June 21, 1951, temporary quarters in Room 2-A-362 of the Pentagon Building,
Washington, D.C. The Court convened for the first time in said quarters on
June 22, 1951, and approved the appointment of Mr. David L. Smith as Assistant
to the Clerk. The appointment was effective June 25, 1951. Mr. Smith was
the first employee hired by the Court.
The Court did not officially meet again until July 9, 1951, at which time it
approved the appointments of Phyllis I. Roule as Secretary to Judge Brosman,
and Ida M. Hansen as Secretary to Judge Latimer.
On July 11, 1951; the Court met again and approved "Rules of Practice and
Procedure" for practice before the Court.
On July 12, 1951, the Court moved its quarters from the Pentagon Building
and established further temporary quarters on the Seventh Floor of the Internal
Revenue Building at 10th and Constitution Avenue, N.W., Washington, D.C.
The Charter members of the personnel of the Court and the dates they reported
for duty are listed below. (It should be noted that the term "charter member"
has been arbitrarily chosen by the author to refer to the three original judges
and any employees hired during the year 1951.)
Robert E. Quinn, Chief June 20, 1951 Leonora Brown (Vaz).. July 31,1951
Judge. Anthony Ortega Aug. 3, 1951
George W. Latimer, Do. Beatrice M. Meyer Aug. 6,1951
Associate Judge. Vincent Murray Aug. 31,1951
Paul W. Brosman, Do. Margery Sarff Sept. 17, 1951
Associate Judge. Michael Katen Sept. 21,1951
David L. Smith June 25,1951 Daniel Walker Oct. 1,1951
Ida M. Hansen July 9,1951 Montroze P. Wilson Do.
PhyUis I. Roule Do. Frederick R. Hanlon... Oct. 15,1951
Richard L. Tedrow July 16,1951 Katherine J. Normad.. Nov. 5,1951
David F. Condon Do. Virginia Siegel Nov. 13,1951
Alfred C. Proulx July 30,1951 Edward Gallogly Nov. 28,1951
Louise Rowe Do.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1829

The first admissions to the bar of the Court were had on July 25, 1951, when
the Court, in open session in the courtroom of the United States Court ol Customs
and Patent Appeals (also located on the 7th Floor of the Internal Revenue
Building), recognized the eminent qualifications of Rear Admiral George L.
Russell, Judge Advocate General of the Navy, Major General Reginald C.
Harmon, Judge Advocate General of the Air Force, Brigadier General James L.
Harbaugh, Jr., Judge Advocate General of the Army, and Mr. John K. Carlock,
Assistant General Counsel for the Department of the Treasury. Thereafter, on
the same day 43 officers and civilian attorneys were sponsored by the original
four members of the bar and were duly admitted to practice, before the Court.
The Code provides that review of cases by the Court may occur in three different
ways.
1. All cases in which the sentence, as affirmed by a Board of Review,
affects a general or flag officer or extends to death.
2. All cases reviewed by a Board of Review which The Judge Advocate
General orders forwarded to the Court of Military Appeals for review.
3. All cases reviewed by a Board of Review in which, upon petition of the
accused and on good cause shown, the Court of Military Appeals has granted
a review.
In any case reviewed by it, the Court of Military Appeals shall act only with
respect to the findings and sentence as approved by the convening authority and
as affirmed or set aside as incorrect in law by the Board of Review. The Court may
take action only with respect to matters of law.
The first case docketed with the Court was United Slates v. John J. MeSorley.
The opinion in this case was released on November 29, 1951. The petition was
dismissed for lack of jurisdiction. The opinion may be found at page 84 of Volume
1 of the Court's reports.
The first case heard by the Court was United States v. Mickey McCrary, Private,
United States Air Force (Docket No. 4). The case, argued on September 7, 1951,
had been certified to the Court by The Judge Advocate General of the Air Force.
On argument Colonel Abner E. Lipscomb represented the accused, McCrary,
and Lieutenant Colonel Jean R. Fydstrom and Captain William E. Shannon
represented the United States.
The case of United States v. McCrary, 1 USCMA 1, became the first opinion
released by the Court. This occurred on November 8, 1951. Judge Latimer
wrote the majority opinion in which Judge Brosman concurred with a separate
opinion. Chief Judge Quinn dissented with a rather lengthy opinion. The
decision of the Board of Review which had affirmed the conviction was affirmed
by the Court.
On September 28, 1951, President Harry S. Truman signed Executive Order
10295 establishing the Seal of the Court which was described therein as follows:
"In front of a silver sword, point up, a gold and silver balance supporting a
pair of silver scales, encircled by an open wreath of oak leaves, green with gold
acorns; all on a grey blue background and within a dark blue band edged in gold
and inscribed 'United States Court of Military Appeals' in gold letters."
Replicas of this seal are located in the lower main hallway at the entrance to
the Court, in the Clerk's Office, in the chambers of each judge, and in the Court-
room itself.
In the first year of the Court's existence, through June 30, 1952, the Court
released ninety-seven opinions. In that period nine hundred and ninety-six
cases were docketed with the Court. In the next fiscal year, that is, the period
July 1, 1952, to June 30, 1953, the Court docketed the largest number of cases
for any year up to the present date. In that year two thousand two hundred
and fifteen cases were docketed. Thereafter, the number of cases filed with the
Court leveled off so that as of June 30, 1961, fifteen thousand one hundred and
eighty-two cases had been docketed, an average in a ten-year period of one thou-
sand five hundred and eighteen cases per year.
The decrease in the number of cases may be attributed to several factors.
First, the decisions of the Court have established the law on many points so that
many of the errors committed in the lower tribunals have now been corrected.
Also the number of men in the armed forces has decreased each year thus cutting
down on the number of courts-martial. For example, on July 1, 1951, there
were approximately one million six hundred thousand personnel in the Army
and in the fiscal year July 1, 1951, to June 30, 1952, the Army held eight thousand
and thirty-seven general courts-martial. On July 1, 1959, the personnel of the
Army had been reduced to approximately eight hundred and seventy-three
1830 JUDICIAL REVIEW OF VETERANS' CLAIMS

thousand and in the year July 1, 1959, to June 30, 1960, the Army held two
thousand and sixty general courts-martial. In addition, it should be remembered
that in the early stages of the Court's existence the United States was involved
in the Korean conflict.
These reasons, plus others, such as the awarding of administrative discharges
in lieu of a court-martial, a practice which this Court deplores, have tended to
reduce the number of cases coming before the Court of Military Appeals. While
the case-load has been reduced, some idea of the tremendous work accomplished
by the Court in its early years can be gleaned from the fact that it is still one of
the busiest appellate courts in the country.
The opinions of the Court were originally published in mimeographed form
and then printed in pamphlet form by the Government Printing Office. Con-
tacts were made with publishing firms and in early 1952 a contract was made with
The Lawyers Co-operative Publishing Company for the printing of advance
sheets and, at the proper time, bound volumes. Generally, the same procedure
is used today. Opinions are released in mimeographed form on Fridays at
noon. At that time they are sent to the publishing company in Rochester,
New York, and within the space of ten days to two weeks the printed advance
sheet with headnotes is completed by the publisher. The plate for these advance
sheets serves as the plate for the printed volume.
To date the Court has eleven volumes outstanding and volume twelve is well
on the way. These volumes contain all the opinions of the Court, as well as final
actions on every case filed with the Court. Volume 1 also contains the Rules of
Practice and Procedure although such Rules have been modified three times since
they were originally adopted on July 11, 1951. The rules were revised March 1,
1952, May 31, 1953, and January 1, 1959. Under the present case-load the Court
completes about one volume of cases a year.
On April 12, 1952, the Court submitted an "Interim Report of the United
States Court of Military Appeals" to the Committees on Armed Services of the
Senate and House of Representatives and to the Secretary of Defense and the
Secretaries of the Army, Navy, Air Force and Treasury pursuant to the require-
ments of the Uniform Code of Military Justice. This report was made solely
by the Court and covered the period May 31, 1951, to March 1, 1952. In the
years thereafter the Annual Reports have been submitted in conjunction with
the Reports of the Army, Navy, Air Force, and Coast Guard (Treasury). Such
reports were made on a calendar year basis except for the year 1952 where, after
the interim report, the next report was filed for the period May 31, 1951, to May
31, 1952. In each of the Annual Reports the Court and the respective services
filed individual reports and also a joint report. However, the joint report was
omitted in the report for the year January 1, 1960, to December 31, 1960. There
were several reasons for the omission but the most significant was that the Army,
in its report, indicated it no longer agreed with all the recommendations that
had been made previously and therefore submitted its own new recommendations
for changes to the Uniform Code. Since these changes had not been submitted
to the Code Committee beforehand there had been no discussion as to the merits
or demerits of such proposals. This eliminated the possibility of agreement on
any matters of substance in a joint report.
In 1952 the Court took under consideration the appointment of a Civilian
Committee to study the progress made under the Uniform Code of Military
Justice during the first two years of its actual operation with a view to recommend-
ing improvements wherever necessary. Thus on January 15, 1953, the Court
established the Court Committee consisting of the following distinguished lawyers:
Whitney N. Seymour (Chairman), New York; Ralph G. Boyd, Massachusetts;
Felix E. Larkin, New York; Dean Joseph A. McClain, Jr., North Carolina;
George A. Spiegelberg, New York; Professor Arthur E. Sutherland, Massachu-
setts; Henry T. Dorrance, New York; and Donald L. Deming (Secretary), New
York.
That Committee held its first meeting in Washington, D.C., on May 28, 29,
1953, and thereafter met three times in New York City and once again in Wash-
ington, D.C. This last meeting was held May 23, 1956. While consideration
was given to further meetings none has been held due to'inability to co-ordinate
the members of the Committee at a convenient time and also due to the failure
of Congress to act upon the various earlier recommendations.
After the Court moved to its permanent quarters at 5th and E Streets, N.W.,
Washington, D.C, in October 1952, the great majority of the sessions of the
Court were held at that address. However, there were sessions held for various
reasons at other locations.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1831

On August 17, 1954, a special admission session was held in conjunction with
the Annual Meeting of the American Bar Association, at the United States Court-
house in Chicago, Illinois. Chief Judge Quinn and Judges Latimer and Brosman
were present. At that session three hundred and thirty-six applicants were
admitted. This was the largest admission session held in the ten-year history
of the Court.
On July 19, 1956, a special admission session was held at Fort George G. Meade,
Maryland. Judge Latimer was present as presiding judge. Fifty-six applicants
were admitted.
The next special session took place less than a month later, specifically, August
15, 1956, at Ross Auditorium, Great Lakes Naval Station, Great Lakes, Illinois.
Chief Judge Quinn presided and two hundred and one applicants were admitted.
On August 22, 1956, a special admission session was held at Patrick Hall,
Fort Benning, Georgia. Judge Latimer presided and one hundred and three
applicants were admitted.
On August 28, 1956, a special admission session was held in the United States
District Court for the Northern District of Texas, Dallas, Texas, in conjunction
with the Annual Meeting of the American Bar Association. Chief Judge Quinn,
Judge Latimer and Judge Ferguson presided. One hundred and forty-eight
applicants were admitted.
On November 19, 1956, a special admission session was held in the Bar As-
sociation Building in New York City. Judges Latimer and Ferguson presided.
One hundred and seventy-six applicants were admitted to the bar.
On July 27, 1957, a special session was held in the Conference Room, Head-
quarters Third Air Force, Victoria Park Estate, South Ruislip, Middlesex,
England. Chief Judge Quinn and Judge Ferguson presided at the admission of
ten applicants.
On August 19, 1958, a special admission session was held at the United States
PostofBce, Yukon, Alaska, eight miles from the Arctic Circle. Chief Judge
Quinn presided. One applicant was admitted.
The following day, August 20, 1958, a special session was held at Camp H. M.
Smith, Honolulu, Territory of Hawaii, judge Ferguson presided and nineteen
motions for admission were granted.
Finally, on August 3, 1960, a special session was held at the United States
District Court, Federal Building, Honolulu, Hawaii. Judge Latimer presided at
the admission of sixty-eight applicants.
As stated previously, the United States Court of Military Appeals has been
located at 5th and E Streets, N.W., Washington, D.C., for the past eight and
one-half years. The building occupied by the Court was authorized by the
Congress by Act of May 30, 1908 (35 Stat 544), for the use of the Court of Appeals
of the District of Columbia. That Court was established by Act of February 9,
1893 (27 Stat 434). Under the Act of June 7, 1934 (48 Stat 926), the title of the
court was changed to "United States Court of Appeals for the District of Co-
lumbia." Under the Act of June 25, 1948 (62 Stat 870), the title of the court was
changed to "United States Court of Appeals for the District of Columbia Circuit."
When that Court moved to the new courthouse at 3d Street and Constitution
Avenue, N.W., the Court of Military Appeals took over the building.
The original authorization of the Congress provided for construction of the
building under the supervision of the Architect of the Capitol at a limit of cost
of $200,000. Subsequent appropriations, totalling $240,792 for construction, and,
in addition, $29,600 for furnishings were provided.
The building, located in Judiciary Square, was completed and occupied Octo-
ber 1, 1910.
Pursuant to the provisions of section 404 of the Judiciary Appropriations Act,
1953, jurisdiction over the building was transferred from Architect of the Capitol
to the General Services Administration, effective October 1, 1952.
The United States Court of Military Appeals moved into the building on
October 31, 1952.
Only one of the original appointees to the Court, Chief Judge Quinn, is still
on the bench at this time. On December 21, 1955, Judge Brosman died suddenly
of a heart attack in his chambers on the second floor (Room 217) of the Court's
Building at 5th and E Streets, N.W., Washington, D.C. The Honorable Homer
Ferguson, former United States Senator from Michigan, was nominated by
President Dwight D. Eisenhower on January 30, 1956, to fill the unexpired five-
year term of Judge Brosman, and for a fifteen-year term ending May 1, 1971.
At the time of his nomination Judge Ferguson was Ambassador to the Philippines.
1832 JUDICIAL REVIEW OF VETERANS' CLAIMS

The appointments were confirmed unanimously by the United States Senate on

February 17, 1956. Judge Ferguson was given the oath of office in the West
Conference Room of the Supreme Court Building by the Chief Justice of the
United States, Earl Warren, on April 9, 1956.
Judge Ferguson was born in Harrison City, Pennsylvania. He attended the
University of Pittsburgh and received a Bachelor of Laws Degree from the
University of Michigan in 1913. He was admitted to the Bar of Michigan in
1913. He practiced law in Detroit from 1913 to 1929. He was appointed Circuit
Judge of the Circuit Court of Wayne County, Michigan, in 1929 and was elected
to successive terms until the year 1941. He sat as a one-man grand jury in Wayne
County, Michigan, from August 1939 to the end of 1942. He was United States
Senator from Michigan from 1943 to 1955. He was United States Ambassador
to the Philipines from March 22, 1955, to April 8, 1956, at which time he resigned
that position to accept appointment to the United States Court of Military
Appeals. Judge Ferguson is a Republican.
On February 15, 1956, memorial proceedings were held in the Courtroom at
10:00 a.m. with Chief Judge Quinn and Judge Latimer presiding. Respects were
paid to the Late Judge Brosman in remarks made by Chief Judge Quinn, Brigadier
General Herbert M. Kidner, United States Air Force, Major General Eugene M.
Caffey, United States Army, Rear Admiral Ira H. Nunn, United States Navy,
Major General Reginald C. Harmon, United States Air Force, Honorable Fred
C. Scribner, Jr., Department of the Treasury (representing the United States
Coast Guard), and Honorable Frederick Bernays Wiener, Secretary, The Judge
Advocates Association. Judge Brosman's chair was draped in black for the
ceremony.
On February 25, 1957, a meeting was held in the Courtroom for presentation
of a bronze plaque in the memory of the late Judge Paul W. Brosman. Chief
Judge Quinn and Associate Judges Latimer and Ferguson sat on the bench.
The officers and directors of The Judge Advocates Association took chairs reserved
for them in the well of the Courtroom. The public section of the Courtroom was
filled with other friends of the late Judge Brosman, including Judges of the
United States Court of Appeals for the District of Columbia Circuit, the United
States District Court for the District of Columbia/The Judge Advocate General
and the Assistant Judge Advocate General of the Air Force, and distinguished
members of the bar of the Court of Military Appeals. Chief Judge Quinn recog-
nized Colonel Nicholas Allen, President of The Judge Advocates Association,
who gave a eulogy of Judge Brosman and presented a bronze plaque to the Court
on behalf of The Judge Advocates Association. Colonel Thomas H. King, First
Vice-President of the Association and Chairman of the Committee on Arrange-
ments for the occasion, and Richard Love, Secretary of the Association, unveiled
the plaque, the inscription on which reads as follows:
"In Memory of Judge Paul W. Brosman, One of Our Charter
Members Who Died on December 21, 1955, while serving as one of
the Original Judges on the United States Court of Military Appeals,
Dean and Teacher of the Law, Judge Advocate, U.S. Air Force By
his Associates in the Judge Advocates Association."
Chief Judge Quinn thanked the members of the Association and accepted the
plaque on behalf of the Court, noting that it would be given a place of prominence
in the Courthouse. He praised the work of Judge Brosman and lauded him
personally as an able legal scholar and a friend.
Judge Latimer spoke of Judge Brosman as a friend, an indefatigable worker, a
stylistic writer and a judge whose judgment was sound.
Judge Ferguson stated that although he had not known Judge Brosman per-
sonally he had a very high regard for Judge Brosman's opinions and work in the
Court. Thereupon, the Court adjourned. The plaque was later placed in the
stairwell of the Court between the first and second floors where it remains to this
day.
On November 18, 1958, the Court noted with regret the death of Chief Judge
Bolitha J. Laws by adopting the following resolution:
"The United States Court of Military Appeals notes the recent passing of
Honorable Bolitha J. Laws, Chief Judge of the United States District Court for
the District of Columbia, with deep regrets. In his death, the Nation suffers the
loss of a man of learning, industry, wisdom and understanding, who, dedicated
to the cause of justice, served his trust and country well. He will forever be
recognized as an able and outstanding jurist and he will long be remembered in
gratitude by his fellow countrymen."
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1833

Copies of this resolution were forwarded by the Clerk of the Court to Mrs.
Bolitha J. Laws of Washington, D.C., and to Honorable F. Dickinson Letts, Chief
Judge of the United States District Court for the District of Columbia.
On May 27, 1959, the Court, with Chief Judge Quinn and Judges Latimer and
Ferguson present, adjourned out of respect to John Foster Dulles, former Secre-
tary of State, who died Sunday, May 24, 1959, and who was to be buried on the
afternoon of May 27 at services held in the National Cathedral and at Arlington
National Cemetery.
On October 20, 1959, the Court established a grievance committee composed
of three members of the bar of the Court. Honorable Nicholas Chase was named
Chairman of the Committee, and Major B. R. Kennedy, United States Army
(Retired), and Reverend Joseph M. Snee, S.J., were designated as members of
the Committee. The Court's first problem in this field was referred to the Com-
mittee on this date.
The grievance committee made its report and recommendation to the Court on
January 7, 1960, and on January 11, 1960, a rule to show cause was issued to the
party concerned. Thereafter, on February 17, 1960, the first and, up to the
present time, the only disbarment order was issued by the Court.
On March 24, 1961, the Court, in regular session, recognized Commissioner
Daniel F. Carney, who introduced to the Court Colonel Edward T. Johnson,
United States Army, Chief of the Army Field Judiciary Division, who was to be
retired March 31, 1961. Chief Judge Quinn, Judge Latimer, and Judge Ferguson
all commended Colonel Johnson on his fine work on the law officer program and
wished him good fortune in his retirement.
On May 1, 1961, the term of office of Judge George W. Latimer, who served
under a ten-year Presidential appointment, expired.
In the first ten years of its operation through June 30, 1961, the Court admitted
9,091 applicants to the Bar of the Court. In addition, the Court granted honorary
membership to 25 lawyers from eight foreign countries. The countries include
Sweden, Thailand, Philippines, Burma, Vietnam, Taiwan, Korea, and Nicaragua.
In addition to the three judges, the Court has a staff of approximately 39
employees, all civilians. To assist the judges in the review of the many cases
received by the Court, there are at present ten Court Commissioners and one
Chief Commissioner. Mr. Richard L. Tedrow has been the Chief Commissioner
since he came on duty with the Court in July 1951. It is the function of the
Commissioners to review the cases as they are received in the Court. A case is
considered received when a petition is filed by the accused, or a certificate is filed
by one of the Judge Advocates General, or when an Assignment of Errors (in a
mandatory case) is filed, and a reply to the initial pleading has been filed. The
date of receipt is significant because the Court, after receipt of the reply in each
case, has thirty (30) days in which to act, that is, either grant, deny or dismiss the
proceeding. The reviews, the pleadings, and the record of trial are sent to the
judges who after careful consideration make the final decision as to the action to
be taken. If the case is denied, then normally that is the end of legal appellate
review in the military system. The only exception to this would, under ordinary
circumstances, be a petition for reconsideration filed with the Court. If the
petition is granted or if the case is either one certified by a Judge Advocate General
or a mandatory case (a case involving the death penalty or one affecting either a
general or a flag officer), then the case is set down for hearing. Two judges con-
stitute a quorum and the concurrence of at least two judges is required for the
rendition of a final decision. Therefore, of course, at least two judges must sit
to hear a case. Normally, all three judges participate in the hearings, the only
exception being the unavailability of one judge because of sickness or other pressing
business, such as an appearance "before a Congressional Committee. After a case
has been heard the judges meet and determine which of the judges shall write the
opinion in a given case. Obviously, if the judges are in disagreement on the
disposition of a case, the opinion is assigned to one of the two judges who agree.
After the opinions are released the parties may request rehearing, modification
or reconsideration of the Court's action. However, such a petition must be filed
with the Court withing five (5) days of the receipt of notice of entry of an order,
decision or opinion of the Court. Mandates (on opinion cases only) are issued
twelve (12) days after the release of an opinion. Issuance of the mandate brings
to a close the legal appellate review of the case in the Court unless the Court has
ordered further action by one of the lower echelons of the court-martial system.
Thus, further action on a case by a board of review in the office of The Judge
Advocate General is usually appealable to the Court again.

S0082 O—6!
1834 JUDICIAL REVIEW OF VETERANS' CLAIMS

In addition to the employees in the immediate chambers of the judges and also
the office of the Commissioners, there is, of course, as in all courts, a Clerk's
Office. Alfred C. Proulx is Clerk of the Court and he has held that position since
he came with the Court in July 1951. In addition, that office has a Deputy
Clerk and various clerical employees. The Clerk's office is responsible for the
receipt and recording of all papers and pleadings filed with the Court and action
taken by the Court on any case coming before it.
The Court has a very fine legal library on the third floor of its building. Num-
bering approximately 13,000 volumes, the Library holdings include basic reference
works common to both general and law libraries; legal volumes covering the
Federal and state statutes; decisions of the Supreme Court of the United States,
the Federal courts, and state courts as recorded in the West Publishing Reporter
System; pamphlets and looseleaf services necessary for the operations of the
Court; and voluminous material from the military services in connection with the
military laws and regulations coming within the scope of the Uniform Code of
Military Justice; as well as fairly comprehensive collections in such specializa-
tions as criminal law, military law, law of evidence, certain aspects of international
law. In addition, there are smaller personal collections of legal reference works
located in the chambers of each of the three judges.
Since April 1952, the Library has been in the very capable hands of Miss
Dorothy V. Allport. It is largely through her efforts that such an excellent library
is available to personnel of the Court and members of the bar of the Court.
On June 1, 1961, President Kennedy announced from Paris, France, that he
intended to appoint Representative Paul J. Kilday, Democrat of Texas, as a
judge of the Court to succeed Judge Latimer. Press Secretary Pierre Salinger
issued a statement which said that Mr. Kilday plans to "serve out the current
session of the Congress so that his district will have representation." On June 28,
1961, the Senate officially received the executive nomination of Congressman
Kilday.
In its ten-year history the Court has made a profound impact on military
justice. During that period, the Court has had much praise for the work it is
doing in promoting a fair and equitable military justice system. There have also
been critics on the other side who feel the Court has changed the system so
radically that military discipline has been adversely affected.
To all who have an interest in military justice, and this should include every-
one, it can be stated without equivocation that the Court has done, and is doing,
what the people of the United States through their duly-elected representatives
have authorized it to do. When justice is done, discipline cannot suffer. Dis-
cipline is a function of command. When there is a lack of discipline, there is a
lack of command. If those in command are unable to achieve a high state of
discipline, it constitutes persiflage to attempt to transfer the blame to a military
justice system which is in essence the same as its civilian counterpart. I t should
be noted, however, that there is no indication that discipline actually has suffered
during the operation of the Uniform Code of Military Justice.
In October 1959, General L. L. Lemnitzer, Chairman of the Joint Chiefs of
Staff, stated:
"I believe that the Army and the American people can take pride in the positive
strides that have been made in the administration and application of military law
under the Uniform Code of Military Justice. The Army today has achieved the
highest state of discipline and good order in its history."
In September 1960, General G. H. Decker, Chief of Staff, United States Army,
stated:
"Today our Army has the highest state of discipline and of personal conduct in
our history. We have never had better morale within the Army."
The Court of Military Appeals looks back with pride upon its ten-year
history. Its work is not yet accomplished—it can never be—for the law is
a living thing. Amendments and improvements in the law will always be possible.
The enforcement and interpretation of the law is dynamic in nature, not static,
and so long as we operate under a democratic system the law will remain dynamic.
This is the way in which the Court of Military Appeals has construed the mandate
of Congress in the Uniform Code and this is why the Court looks forward to the
future with hope and anticipation—hope that the Code will be an instrument
by which the military will achieve justice and maintain discipline, and anticipa-
tion that the improvements in the Code already recommended to the Congress
will come to fruition in the very near future.
FREDERICK R. HANLON, Deputy Clerk.
JULY 1, 1961.
 UNITED STATES COURT
OF MILITARY APPEALS

RULES OF
PRACTICE AND
PROCEDURE

Revised January 1, 1962

1S35
UNITED STATES COURT OF MILITARY
APPEALS

CHIEF JUDGE

HON. ROBERT E. QUINN

ASSOCIATE JUDGES

HON. HOMER FERGUSON

HON. PAUL J. KILDAY

CLERK

ALFRED C. PROULX

Fifth and E Streets NW.

WASHINGTON 25, D.C.

1837
 JUDICIAL REVIEW OF VETERANS' CLAIMS

UNITED STATES COURT OF MILITARY APPEALS

RULES OF PRACTICE AND PROCEDURE

These RULES OF PRACTICE AND PROCEDURE prescribed

pursuant to Article 67 of the Uniform Code of Military Justice, Act
of May 5, 1950 (64 Stat. 129,10 U.S.C. 801), to which Code reference
should be made for all Articles cited herein, issued July 11, 1951,
revised March 1, 1952, May 31,1953, and January 1, 1959, are hereby
further revised as of January 1, 1962.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1839

GENERAL
Rule 1. Name
The Court adopts "United States Court of Military Appeals" as
the title of the Court.
Rule 2. Seal
The seal of the Court is of the following description:
In front of a silver sword, point up, a gold and silver balance supporting a
pair of silver scales, encircled by an open wreath of oak leaves, green with
gold acorns; all on a grey blue background and within a dark blue band edged
in gold and inscribed "UNITED STATES COURT OF MILITARY AP-
PEALS" in gold letters. (E.O. 10295, September 28, 1951, 16 F.R. 10011; 3
CFK 1951 Supp.)
Rule 3. Jurisdiction
The Court will review the record in the following cases :
(a) General or flag officers; death sentences. All cases in which the
sentence, as affirmed by a board of review, affects a general or flag offi-
cer, or extends to death;
(b) Certified by The Judge Advocate General. All cases reviewed
by a board of review which The Judge Advocate General forwards by
Certificate for Review to the Court; and,
(c) Petitioned by the accused. All cases reviewed by a board of
review in which, upon petition of the accused and on good cause shown,
the Court has granted a review, except those reviewed under Article
69.
Rule 4. Scope of Review
The Court will act only with respect to the findings and sentence as
approved by the convening or reviewing authority, and as affirmed or
as set aside as incorrect in law by a board of review. In those cases
which The Judge Advocate General forwards to the Court by Certifi-
cate For Review, action need be taken only with respect to the issues
raised by him. In a case reviewed upon petition of the accused, action
need be taken only with respect to issues specified by the Court in the
grant of review. The Court may, in any case, however, review other
matters of law which materially affect the rights of the parties. The
points raised in the Court will involve only errors in law.
Rule 5. Quorum
Two of the judges shall constitute a quorum. The concurrence of
two judges shall be required for the rendition of a final decision or the
 JUDICIAL REVIEW OF VETERANS' CLAIMS

allowance or denial of a Petition for Grant of Keview. In the absence

of a quorum, any judge may make all necessary orders relating to any
matter pending before the Court relative to the filing of papers or
preparatory to a hearing or decision thereon. If, at any time, a
quorum is not present on any day appointed for holding a hearing, any
judge present may adjourn the Court from time to time, or, if no
judge is present, the Clerk may adjourn the Court from day to day.
Rule 6. Process
All process of the Court, except mandates, shall be in the name of
the President of the United States, and shall contain the given names
as well as the surname of the parties.
Rule 7. Parties
The accused will be deemed to be the appellant in all cases except
those in which The Judge Advocate General has certified a decision
of a board of review in which a finding of guilty is set aside. In such
cases, the United States shall be deemed the appellant.

CLERK'S OFFICE
Rule 8. Clerk
(a) Location of office. The Clerk of the Court shall keep the office
at the seat of the National Government, Washington, D.C.
(6) Restriction on incumbent. He shall not practice as attorney or
counsellor in any court while he continues in office.
(c) Oath of office. Before he enters on the execution of his office,
he shall take an oath in the form prescribed by 28 U.S.C. 951, which
reads:
"I, * * *, having been appointed * * *, do solemnly swear (or affirm) that
I will truly and faithfully enter and record all orders, decrees, judgments, and
proceedings of such Court, and will faithfully and impartially discharge all
other duties of my office according to the best of my abilities and understand-
ing. So help me God."
(d) Custodian of records. He shall not permit an original record,
pleading, or other paper relative to a case to be taken from the court-
room or from the office without an order from a judge of the Court.
(e) Hours. The office of the Clerk will be open from 9 a.m. to 5 p.m.
every week-day except holidays and Saturdays.
Rule 9. Oocfcef
(a) Maintenance of docket. The Clerk shall maintain in his office
a docket, in which shall be entered the receipt of all pleadings or other
papers filed, and any action by the Court relative to a case. Entries in
the docket shall be noted chronologically on the page or pages assigned
to the case, showing briefly the date, the nature of each pleading or
other paper filed, and the substance of any action by the Court.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1841

(6) Docket number. Upon receipt of either the Petition for Grant
of Review, the Certificate for Review, or the Assignment of Errors, the
case shall be assigned a docket number. All pleadings or other papers
subsequently filed in the case shall bear this number.
(c) Notice of docketing. The Clerk shall promptly notify The
Judge Advocate General of the service concerned, and the accused or
his appellate counsel, of the receipt and docketing of the case, includ-
ing the docket number assigned.

ADMISSIONS
Rule 70. Professional Requirements
It shall be requisite to the admission of an attorney or counsellor to
practice in this Court that he be a member of the bar of a Federal
court or of the highest court of a State, Territory, Commonwealth, or
Possession.
Rule 7 7. Application Form
In order to appear before the Court/an application shall be filed
with the Clerk on a form supplied by him, which form shall be avail-
able upon request.
Rule 72. Certificate
(a) Of good standing. Together with the application form the
applicant shall file a certificate from the presiding judge or clerk of
the proper court that the applicant is a member of the bar and that
his private and professional character appear to be good.
(b) Original and current. The certificate of good standing must be
an original and current, dated within 1 year of the date of application.
(c) Member of an Ariiied Service. A member of an Armed Service
need not submit a certificate of good standing if the application form
is certified by the Judge Advocate General of his respective service.
Rule 73. Oath
Upon being admitted, each applicant shall take in open court the
following oath or affirmation, viz :
"I, * * *, do solemnly swear (or affirm) that I will support the Constitution
of the United States; and, t h a t ' I will demean myself, as an attorney and
counsellor of this Court, uprightly, and according to law."

Rule 14. Motions

Admissions will be granted upon motion of the Court or upon oral
motion by a person admitted to practice before the Court, on any
day the Court holds a regular session. No motion for admission in
absentia will be entertained.
1842 JUDICIAL REVIEW OF VETERANS' CLAIMS

APPEARANCE AND ASSIGNMENT OF COUNSEL

Rule 15. Entry of Appearance by Counsel
(a) In writing. Civilian and military appellate counsel shall file
an entry of appearance in writing before participating in a case.
(b) Filing of pleading or other paper. The filing of any plead-
ing or other paper relative to a case which contains the signature of
counsel will constitute an entry of appearance for such counsel.
Rule 16. Assignment of Counsel
Whenever a record of trial is forwarded by The Judge Advocate
General for review, he shall immediately designate appellate Gov-
ernment counsel, and shall immediately designate appellate defense
counsel, unless he has been notified that the accused desires to be
represented before the Court by civilian counsel.

APPEALS
Rule 17. Methods of Appeal
Cases shall be appealed to the Court by one of the following
methods:
(a) Cases under Article 67(b)(3). All cases under Article
67(&) (3) shall be appealed by a Petition for Grant of Review, and
such petition shall be substantially in the form provided in Rule 18.
(6) Oases under Article 67(b)(2). All cases under Article
67(b)(2) shall be forwarded by The Judge Advocate General by a
Certificate for Review, and such certificate shall be substantially in
the form provided in Rule 19.
(c) Cases under Article 67(b)(1). All cases under Article
67(J) (1) shall be forwarded by The Judge Advocate General accom-
panied by an Assignment of Errors urged by appellate counsel for
the accused substantially in the form provided in Rule 20.
Rule 18. Form of Petition for Grant of Review
The Petition for Grant of Review under Article 67(b)(3) shall be
substantially in the following form:
IN THE UNITED STATES
COURT OF MILITARY APPEALS

UNITED STATES,
Appellee PETITION FOR GRANT OF REVIEW
v. > Board of Review No.
Docket No.
Appellant J
 JUDICIAL REVIEW OP VETERANS' CLAIMS 1843

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT

OF MILITARY APPEALS:
1. The accused having been found guilty of a violation of the Uniform Code
of Military Justice, Article , and having been sentenced to , on
, at , by , and said sentence having been approved
by the convening authority and affirmed by a Board of Review on ,
hereby petitions the United States Court of Military Appeals for a grant of re-
view of the decision of the Board of Review, pursuant to the provisions of the
Uniform Code of Military Justice, Article 67 (b) (3).
2. Insert either (A) or (B), whichever is applicable :
(A) (// accused, desires counsel appointed by The Judge Advocate General)
"The accused requests appellate defense counsel be designated by The Judge
Advocate General to represent him in processing this Petition for Grant of
Review, and during the review, if the same be granted by the United States
Court of Military Appeals."
(B) (// accused desires to retain other counsel)
"The accused requests appellate defense counsel be designated by The Judge
Advocate General to represent him, in association with his privately retained
counsel, named below, to the extent such privately retained counsel may desire.
Name and address of privately retained counsel

3. The accused claims error on the following questions of law : (Here set forth
separately and particularly each error assigned upon which accused relies, in-
cluding such points and authorities as may be desired.)
Note. Claim of "insufficiency of the evidence" as an assigned error shall set out with
particularity exactly In what respect the evidence is lacking with record references, if
available.
4. The accused was notified of the decision of the Board of Review on the
day of , 19 , and placed his request to petition the Court
in military channels or in the mail on the day of , 19

(Accused) or (Appellate Counsel for Accused)

Address
Petition was received in the Office of The Judge Advocate General of the
, on the day of , 19

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed or delivered to Appellate

Government Counsel on the day of , 19

Name

Address
Rule 79. Form of Certificate for Review
The Certificate for Review under Article 67(&)(2) shall be sub-
stantially in the following form:
1844 JUDICIAL REVIEW OP VETERANS' CLAIMS

IN THE UNITED STATES

COURT OF MILITARY APPEALS

UNITED STATES,
(Appellee) (Appellant) CERTIFICATE OF REVIEW
v. Board of Review No
Docket No
(Appellant) (Appellee)

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT

OF MILITARY APPEALS:
1. Pursuant to the Uniform Code of MUitary Justice, Article 67(6) (2), the
record of trial, and decision of the Board of Review, United States ,
in the above-entitled case, are forwarded for review.
2. The accused was found guilty of a violation of the Uniform Code of Mili-
tary Justice, Article , was sentenced to , on , at ,
by The sentence was approved by the convening authority and
affirmed by a Board of Review on the day of , 19
3. I t is requested that action be taken with respect to the following issues:

The Judge Advocate General

Received a copy of the foregoing Certificate for Review this day of
., 19_

Appellate Government Connsel

Address

Appellate Defense Counsel

Address
Rule 20. Form of Assignment of Errors in Mandatory Cases
The Assignment of Errors under Article 67(&) (1) shall be sub-
stantially in the following form.
IN THE UNITED STATES
COURT OF MILITARY APPEALS
UNITED STATES,
Appellee ASSIGNMENT OF ERRORS
v. • Board of Review No
Docket No
Appellant

TO THE HONORABLE, THE JUDGES OP THE UNITED STATES COURT

OF MILITARY APPEALS:
1. The accused having been found guilty of a violation of the Uniform Code
of Military Justice, Article , and having been sentenced to , on
, at , by , and said sentence having been approved
 JUDICIAL REVIEW OP VETERANS' CLAIMS 1845

by the convening authority and affirmed by a Board of Review on ,

hereby presents an Assignment of Errors directed to the decision of the Board
of Review, pursuant to the provisions of the Uniform Code of Military Justice,
Article67(6) (1).
2. The accused claims error on the following questions of law: (Here set
forth separately and particularly each error assigned upon which accused relies,
including such points and authorities as may be desired.)
Note. Claim of "Insufficiency of the evidence" as an assigned error shall set out with
particularity exactly In what reBpect the evidence is lacking with record references, If
available.
3. The accused was notified of the decision of the Board of Review on
the day of , 19

(Appellate Counsel for Accused) or Accused

Address
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was mailed or delivered to Appellate
Government Counsel on the day of , 19

Name

Address
Rule 2 J. Reply to Petition for Grant of Review
(a) Time requirement. Within 15 days after the filing of a Peti-
tion for Grant of Eeview by an accused under Article 67(6) (3),
appellate Government counsel shall file a reply to the Petition stating
his views with respect to the merits of the errors of law raised in the
Petition and why he believes the Petition should not be granted.
(&) Form. This reply shall be similar in form to the Petition, and
brief of the accused, should one be filed, except that if the appellate
Government counsel disagrees with the statement of facts, or desires
to supplement it with additional facts, he shall start his reply with new
information. If a claim of insufficiency of evidence is contested, the
reply shall set forth affirmatively, with particularity, wherein it is
claimed the evidence is sufficient, with record references. See also
Rule 40.
Rule 22. Reply fo Certificate for Review
See Rule 41.
Rule 23. Reply fo Assignment of Errors in Mandatory Cases
See Rule 42.
1846 JUDICIAL REVIEW OF VETERANS' CLAIMS

TIME REQUIREMENTS FOR FILING APPEALS, PLEADINGS OR

OTHER PAPERS
Rule 24. Petition for Grant of Review [Article 67(b)(3) Cases)
(a) Time requirement. The accused shall file a Petition for Grant
of Review within 30 days after receipt of the decision of a board
of review in cases appealed to the Court under Article 67(6) (3).
(b) Postmark; deposit in military channels. A petition for Grant
of Review shall be deemed to have been filed upon the date postmarked
on the envelope containing the petition, or upon the date when the
petition is deposited in military channels for transmittal.
(c) Forwarded through The Judge Advocate General. A Peti-
tion for Grant of Review may be forwarded through The Judge
Advocate General of the service concerned, and such Judge Advocate
General will thereafter cause the same to be filed with the Court
within 30 days of receipt thereof.
Rule 25. Certificate for Review lArtide67lb)i2) Cases)
The Judge Advocate General shall file a Certificate for Review
within 30 days after receipt of the decision of a board of review in
cases forwarded to the Court under Article 67 (b) (2).
Rule 26. Assignment of Errors [Article 67(b)(1) Cases)
The accused or his appellate counsel shall file an Assignment of
Errors within 30 days after receipt of the decision of a board of re-
view in cases forwarded to the Court under Article 67(J) (1).
Rule 27. Pleadings or Other Papers
All pleadings or other, papers relative to a case, transmitted by
mail or other means for filing in the office of the Clerk, shall not be
deemed to have been filed until received in his office. (For exception
relative to the filing of a Petition for Grant of Review see Rule 24.)
Rule 28. Computation of Time
In computing any period of time prescribed or allowed by these
Rules, by order of Court, or by any applicable statute, the day of the
act, event or default after which the designated period of time begins
to run is not to be included. The last day of the period so computed
is to be included, unless it is a Saturday, Sunday or legal holiday, in
which event the period runs until the end of the next day which is
neither a Saturday, Sunday nor a holiday. When the period of time
prescribed or allowed is less than 7 days, intermediate Saturdays,
Sundays and holidays shall be excluded in the computation.
Rule 29. Enlargement
When by these Rules or by notice given thereunder, or by order of
Court, an act is required or allowed to be done at or within a specified
time, the Court for cause shown may at any time in its discretion:
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1847

(a) Before expiration of period prescribed or extended. With or

without motion or notice, order the period extended if request therefor
is made before the expiration of the period as originally prescribed or
as extended by previous order, or
(b) After expiration of specified period. Upon motion made after
the expiration of the specified period permit the act to be done where
the failure to act was the result of excusable neglect, but the time for
filing a Petition for Grant of Eeview as prescribed in Article 67(c)
and Rule 24 will not be extended.
Rule 30. Motions
(a) Must state relief sought and grounds therefor. All motions,
unless made during the course of a hearing, shall state with particu-
larity the relief sought and the grounds therefor.
(b) Opposition. Any opposition to a motion shall be filed within
5 days after receipt by the opposing party of service of the motion.
(c) For leave to file. Any pleading not required by these Rules
shall be accompanied by a motion for leave to file such pleading.
Rule 31. Additional Time When Service Is by Mail
Whenever a party has the right or is required to do some act or take
some proceedings within a prescribed period after the service of a
notice, pleading, or other paper relative to a case when such service
is made upon him by mail, 3 days shall be added to the prescribed
period if the party upon whom the service is made is within the con-
tinental limits of the United States, and 15 days shall be added thereto
if the party is located outside those limits.
Rule 32. Continuances and Interlocutory Matters
The Court may extend any times prescribed by these Rules, may
grant continuances and postponements from time to time, and may
take such other action the Court considers necessary for a full, fair,
and expeditious disposition of a case.

PROVISIONS APPLICABLE TO PLEADINGS OR OTHER

PAPERS FILED
Rule 33. Filing
All pleadings or other papers relative to a case shall be filed in the
office of the Clerk.
Rule 34. Copies
An original and four legible copies of all pleadings or other papers'
relative to a case shall be filed.
Rule 35. Style
All pleadings or other papers relative to a case shall be printed or
typewritten.
1848 JUDICIAL REVIEW OF VETERANS' CLAIMS

(a) If printed. They shall be in such form and size that they can
be conveniently bound together.
(6) / / typewritten. They shall be double-spaced on legal cap white
paper securely fastened at the top.
Rule 36. Record References
All record references shall show page numbers and any exhibit desig-
nations.
Rule 37. Signature
All pleadings or other papers relative to a case shall bear an original
signature and shall show the name and address of the person signing,
together wtih his military rank, if any, and the capacity in which he
signs the paper. Such signature shall constitute a certificate that the
statements made therein are true and correct to the best of the knowl-
edge, information, and belief of the person signing the pleading or
paper, and that the pleading or paper is filed in good faith and not
for the purpose of unnecessary delay.
Rule 3 8 . Service
(a) In general. Prior to the filing of any pleading-or other paper
relative to a case in the office of the Clerk, service of a copy of the
same shall be made on all counsel of record. In the case of a Certifi-
cate for Review, service of a copy thereof shall be made on appellate
Government counsel and the accused or his appellate counsel.
(6) By mail. Any pleading or other paper filed relative to a case
may be served on all counsel of record by mail. When service by mail
is used a certificate shall be included in the original pleading or other
paper filed substantially in the following form:
CERTIFICATE OF SERVICE ON ALL COUNSEL OF RECORD
I certify that a copy of the foregoing was mailed to all counsel of record on
the day of , 19

Name

Address

BRIEFS
Rule 39. Form of Brief
All briefs shall be substantially in the following form:
IN THE UNITED STATES
COURT OF MILITARY APPEALS
UNITED STATES, \ BRIEF ON BEHALF OF
(Appellant) (Appellee) (ACCUSED) (UNITED STATES)
Board of Review No.
(Appellee) (Appellant) J Docket No.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1849

Index of Brief
(Omit index if brief is less than ten pages)
Statement of Facts
(Set forth a concise statement of the facts of the case material to the issues
concerning which any error is assigned. Portions of the record of trial and other
matters of evidentiary nature shall not be included in this statement. Pertinent
portions of the statement of facts in briefs of appellate counsel or the decision
of the Board of Review may be quoted.)
Assignment of Errors
(Here set forth each error assigned in the Petition for Grant of Review,
or each issue raised in the Certificate for Review, or each error assigned in
the Assignment of Errors, or each issue specified by the Court.)

Argument
(Discuss briefly the points of law presented, citing and quoting such authorities
as are deemed pertinent.)
Conclusion
Insert (A), (B) or (C), whichever is applicable:
(A) "For the reasons stated the accused is entitled to a grant of review under
the provisions of the Uniform Code of Military Justice, Article 67(6) (3."
(B) "This brief is submitted under the provisions of the Uniform Code of
Military Justice, Article 67(6) (2)."
(C) "This brief is submitted under the provisions of the Uniform Code of
Military Justice, Article 67 (6) (1)."

Signature of Counsel
Address
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was mailed or delivered to appellate
(Defense) (Government) counsel on the day of , 19

Name
Address

Rule 40. Brief in Support of Petition for Grant of Review {Article

67(b)(3) Cases)
(a) By appellant. If desired, a brief may be filed in support of a
Petition for Grant of Review. If a brief is to be filed, it shall accom-
pany the Petition.
(b) By appellee. Appellee's brief shall be filed within 15 days of
the filing of appellant's brief.
Rule 41. Brief in Support of Certificate for Review [Article 67(b)(2)
Cases)
(a) By appellant. A brief shall be filed by appellant in support
of a Certificate for Review within 20 days of the filing of such cer-
tificate.
80082 O - 6 2 - 9
1850 JUDICIAL REVIEW OF VETERANS' CLAIMS

(b) By appellee. Appellee's brief shall be filed within 20 days of

the filing of appellant's brief. If appellant fails to file a brief,
appellee may file his brief within 20 days after expiration of the time
allowed for the filing of appellant's brief.
Rule 42. Brief in Support of Assignment of Errors (Article 67(b)i1r
Cases)
(a) By appellant. A brief shall be filed by appellant in support of
an Assignment of Errors within 30 days of the filing of such Assign-
ment.
(b) By appellee. Appellee's brief shall be filed within 20 days of
filing of appellant's brief. If appellant fails to file a brief, appellee
may file his brief within 20 days after expiration of the time allowed
for the filing of appellant's brief.
Rule 43. Brief in Support of Petition Granted
A brief in support of a petition granted shall be filed on issues
raised by parties or specified by the Court, unless said brief is waived
by the Court.
(a) By appellant. A brief shall be filed by appellant within 30 days
of the entry of the order of the Court granting review.
(b) By appellee. Appellee's brief shall be filed within 20 days of
filing of appellant's brief. If appellant fails to file a brief, appellee
may file his brief within 20 days after expiration of the time allowed
for the filing of appellant's brief.
Rule 44. Amicus Curiae Brief
A brief of an amicus curiae may be filed only by permission of the
Court.
HEARINGS
Rule 45. Petition for Grant of Review
Except when ordered by the Court, oral argument will not be per-
mitted on a Petition for Grant of Keview.
Rule 46. Motions
Except when ordered by the Court, oral argument will not be per-
mitted on motions.
Rule 47. Oral Argument
Oral argument will be heard after briefs have been filed in accord-
ance with Rules 41,42 or 43.
(a) Presentation. The appellant shall be entitled to open and close
the argument; in the event both parties desire a review of a decision
of a board of review, the accused shall be entitled to open and close.
(b) Number of counsel. Not more than two counsel for each side
shall be heard in oral argument unless the Court otherwise orders.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1851

(c) Time. Not more than 30 minutes on each side shall be allowed
for oral argument unless the time is extended by leave of Court.
(d) Failure of counsel to appear. If counsel fail to appear at the
time set for oral argument the Court may consider the case as having
been submitted without argument or, in its discretion, continue the
case until a later date.
(e) Failure of counsel for one party to appear. If counsel for one
party fails to appear the Court may hear oral argument from the
counsel appearing or, in its discretion, continue the case until a later
date.
(/) Waiver of oral argument. A case may be submitted on briefs
without oral argument with permission of the Court.
Rule 48. Notice of Hearing
The Clerk shall give at least 10 days' notice in writing of the time
and place for any hearing.

PETITION FOR REHEARING, MODIFICATION, OR

RECONSIDERATION
Rule 49. Fiffng
(a) Time requirement. A petition for rehearing, modification, or
reconsideration shall be filed within 5 days from receipt of notice of
entry of an order, decision, or opinion by the Court.
(b) Reply. Any reply to a petition shall be filed by the opposing
party within 5 days after receipt of service of the petition.
Rule 50. Contents
The petition for rehearing, modification, or reconsideration shall
state briefly and directly its grounds and be supported by a certificate
of counsel to the effect that it is presented in good faith and not for
delay.
Rule 51. Oral Argument
Except when ordered by the Court, oral argument will not be per-
mitted on a petition for rehearing, modification, or reconsideration.

PETITION FOR NEW TRIAL

Rule 52. Filing
A petition for new trial shall be filed with The Judge Advocate
General of the service concerned.
Rule 53. Notice of Reference
Upon receipt from The Judge Advocate General of a petition for
new trial (original and four copies) in a case pending before the Court,
the Clerk shall notify all counsel of record of such receipt.
1852 JUDICIAL REVIEW OF VETERANS' CLAIMS

Rule 54. Additional Investigation

The Court on considering a petition for new trial may refer the
matter to a referee to make further investigation, to take evidence and
to make such recommendations to the Court as he deems appropriate.
Rule 55. Answer
Appellee shall file an answer to a petition for new trial within 10
days after receipt of notification by the Clerk of the docketing of the
petition.
Rule 56. Briefs
(a) By appellant. Any brief in support of a petition for new trial
shall be filed within 10 days of appellee's answer. If appellee fails to
file an answer, appellant may file a brief within 10 days after the
expiration of the time allowed for the filing of appellee's answer.
(b) By appellee. Appellee's brief shall be filed within 10 days of
filing of appellant's brief. If appellant fails to file a brief, appellee
may file his brief within 10 days after the expiration of the time
allowed for the filing of appellant's brief.
Rule 57. Oral Argument
Except when ordered by the Court oral argument will not be
permitted on a petition for new trial.

MANDATES
Rule 58. Issuance
Mandates shall issue after the expiration of 12 days from the day
the opinion of the Court is filed with the Clerk, unless a petition for
rehearing, modification or reconsideration is filed, or the time is
shortened or enlarged by order of the Court, or unless the parties
stipulate that it be issued sooner.
Rule 59. Petition Denied
No mandate shall issue upon the denial of a Petition for Grant of
Review. Whenever a Petition for Grant of Review is denied, the
Clerk shall enter an order to that effect and shall forthwith notify
The Judge Advocate General of the service concerned and counsel
of record.
OPINIONS
Rule 60. Filing
All opinions of the Court shall be filed with the Clerk for
preservation.
Rule 6 1 . Reproduction and Distribution
The reproduction, printing and distribution of all opinions shall
be pursuant to the direction of and under the supervision of the Clerk.
 JUDICIAL REVIEW OP VETERANS' CLAIMS 1853

ADMINISTRATIVE OFFICE OF THE U.S. COURTS,

SUPREME COURT BUILDING,
Washington, D.C., February 27, 1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: We wish to inform your committee of the action taken
by the Judicial Conference of the United States at its meeting in September 1960
concerning H.R. 12653 of the 86th Congress. H.R. 12653 provided for the estab-
lishment of a Court of Veterans' Appeals, and several bills with similar provisions
have been introduced in the 87th Congress.
At its meeting in March 1960, and at previous meetings, the Conference had
taken no position with respect to the policy involved in according judicial review
to veterans' claims, but had recommended that such review, if granted, should be
in the district court of the veteran's residence. However, after testimony at
hearings indicated that the number of such appeals would increase congestion in
the district courts if this procedure were followed, the Judicial Conference, upon
recommendation of its Committee on Revision of the Laws and Court Adminis-
tration, in September 1960, withdrew its previous recommendation and approved
the type of judicial review by a Court of Veterans' Appeals, as provided in H.R.
12653, 86th Congress.
However, the Conference at that time expressed disapproval of section 4(a) of
that bill, which would have amended sections 451 and 610 of title 28, United
States Code, so as to include the Court of Veterans' Appeals among the courts
of the United States to which title 28 applies. It was pointed out by the com-
mittees that the courts of the United States, as presently defined in section 451,
include only those courts (with the special exception of the U.S. District Court
for the District of Puerto Rico) which are established under article I I I of the
Constitution, whose judges hold office during good behavior under that article
and whose decisions are subject to ultimate review by the Supreme Court. They
do not include the Tax Court of the United States or the Court of Military Ap-
peals, courts more nearly analogous to the proposed Court of Veterans' Appeals.
If the latter court were included in the definition of section 451, a number of
inappropriate provisions of title 28 would automatically become applicable to it.
Accordingly, the Conference took the view that "* * * the proposed Court of
Veterans' Appeals is not a court of the type intended to be included in section
451 and that a sweeping and indiscriminate application of the provisions of title
28, United States Code, to the court would be unwise" (Jud. Conf. Report, Sep-
tember 1960, p. 53).
It was also felt that since the Court of Veterans' Appeals will be wholly inde-
pendent and not subject to the supervision on writ of certiorari by the Supreme
Court, the Director of the Administrative Office who is appointed by the Supreme
Court and who operates under the supervision and direction of the Judicial Con-
ference should not be made responsible for its statistics or for its administrative
and fiscal support. I t was suggested by the committees that by analogy to the
Court of Military Appeals, which is a similar legislative court wholly outside of
the regular Federal judicial establishment, these arrangements should be handled
by the court itself. The Conference agreed with these views.
In addition, the proposed section 4061(b) of title 38, contained in H.R. 12653,
which directs the clerk of the Court of Veterans' Appeals to pay into the Treasury
all fees, costs, and other moneys collected by him, further provides that he shall
make returns thereof to the Director of the Administrative Office of the U.S.
Courts under regulations prescribed by him. This also would seem to be an
inappropriate provision.
If we may furnish any other information to the committee for its consideration
of this legislation, we shall be happy to do so.
Sincerely yours,
AUBREY GASQUE, Assistant Director.
1854 JUDICIAL REVIEW OF VETERANS' CLAIMS

VETERANS' ADMINISTRATION,
OFFICE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
Washington, D.C., April 5, 1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DEAR MR. TEAGUE: The following comments are submitted in response to
your request for a report on H.R. 852, 87th Congress.
The purpose of the bill is to authorize the Administrator of Veterans' Affairs to
employ, on a temporary or intermittent basis, experts or consultants who are
members of designated American specialty boards or medical specialty sections,
to serve on medical advisory panels and render opinions as to whether a disability
or death is service connected. The Administrator would submit to the panels
cases in which he finds there is material doubt or material conflict of medical
evidence on such question.
H.R. 852 would not grant the Administrator any new authority. Under
38 U.S.C. 213 he may enter into contracts or agreements with private or public
agencies or persons for such necessary services (including personal services) as
he may deem practicable; and under 38 U.S.C. 4114(a) upon the recommendation
of the Chief Medical Director he may employ physicians on a fee basis, without
regard to the Classification Act of 1949. The bill would, however, formalize the
procedure for obtaining medical opinion from independent experts and consultants.
The language of the proposal is permissive and would permit the Administrator
to determine when a material doubt or material conflict of medical evidence
exists. This is most desirable. We believe, however, that if the bill is favorably
considered by the committee it should be amended to confine the question to be
presented to the medical advisory panels to strictly medical issues rather than
"whether or not a disability or death is service connected." Otherwise, the
medical advisory panels would be rendering opinions on questions of fact not
necessarily involving medical issues. In addition, in deciding the broad question
of service connection they would be required to apply legal presumptions and
regulatory criteria; matters which can be better determined by trained legal
specialists than by medical specialists.
The extensive facilities of our Department of Medicine and Surgery are, of
course, available and utilized as necessary in the adjudication of compensation
cases. Most of our hospitals have highly qualified staff physicians who are
readily available for consultation in connection with any medical question involv-
ing doubt or conflict of evidence. Many of these physicians are of professorial
stature in colleges of medicine with which our hospitals are affiliated. These
physicians represent some of the most competent board certified specialists in
the medical community and are often of national and international repute.
Upon request by the Department of Medicine and Surgery in central office or
at the hospital level, these men serve from time to time on boards established to
resolve specific professional questions at issue.
On September 9, 1959, the Department of Medicine and Surgery issued pro-
cedures for accomplishing special diagnostic studies and examinations for ad-'
judicative purposes (change 12 to VA Manual M-2, pt. I, ch. 8, a copy of which
is attached). Under the procedure prescribed in that chapter, any suitably
staffed and equipped VA hospital may be designated to accomplish an examination
or observation of a claimant when no satisfactory diagnostic conclusion can be
reached due to irreconcilable differences of professional opinion.
At the request of members of the professional staff of your committee, the
Veterans' Administration is currently undertaking a study in which a group of
cases involving material doubt or material conflict of evidence in a medical issue—
primarily matters of etiology, diagnosis, or relationship—-will be submitted to the
Chief Medical Director for an opinion and, thereafter, the same question will be
submitted to independent medical experts for an opinion. An analysis of this
study by the Veterans' Administration and your committee upon its completion
will no doubt aid in determining the need for medical advisory panels.
H.R. 852, if enacted, could result in a minor number of new cases being added
to the compensation rolls with a negligible effect on benefit cost.
In view of the foregoing, the Veterans' Administration recommends that further
consideration of the bill be deferred until completion of the current study.
The Bureau of the Budget advises that there is no objection to the presentation
of this report from the standpoint of the administration's program and that the
Bureau recommends strongly against passage of the bill.
Sincerely,
J. S. GLEASON, Jr., Administrator.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1855

S E P T E M B E R 9, 1959
M-2, Part I
Change 12

C H A P T E R 8. SPECIAL, D I A G N O S T I C S T U D I E S AND E X A M I N A T I O N S F O R ADJUDICATIVE

PURPOSES

8.01 POLICY
Any suitably staffed a n d equipped VA hospital m a y be selected under t h e
procedures described below for t h e examination and observation of a claimant
when no satisfactory diagnostic conclusion can be reached due to irreconcilable
differences of medical opinion expressed a t VA field stations b y professional
personnel who have previously examined t h e claminant.

8.02 GENERAL PROCEDURES

a. Upon request of an adjudication officer or of Central Office, t h e a p p r o p r i a t e

Director of Clinic 1 will designate t h e nearest VA hospital to perform a special
diagnostic s t u d y a n d examination in the same manner as for any other period of
observation and examination. T h e following factors will be considered for pur-
poses of determining t h e "nearest suitable hospital" under these procedures.
(1) T h e hospital selected will be t h e one located nearest t h e claimant's
place of residence which is equipped a n d staffed t o perform t h e various special
studies or examinations required.
(2) I t should n o t be one of those field stations where t h e claimant has
previously been examined and the professional staff has expressed one of t h e
differing medical opinions to be reconciled. However, the fact t h a t t h e claim-
a n t has been hospitalized there previously for some condition unrelated t o t h e
diagnostic problem will not b a r its selection.
(3) In any case of unusual circumstances in which t h e Director of Clinic
is unable to elect a suitable hospital, he will furnish t h e Area Medical Director
with t h e full details a n d request t h a t he nominate an appropriate hospital
t o conduct t h e required s t u d y a n d examination. If t h e Area Medical
Director for any reason is unable to designate a hospital within his area which
he considers suitable, he will furnish full details t o t h e A C M D for Operations
in Central Office who will t h e n designate an a p p r o p r i a t e hospital in another
area. -.
b. T h e hospital so selected will be advised t h a t it is requested to perform t h e
described special diagnostic s t u d y and examination under t h e provisions of this
chapter so t h a t t h e hospital manager and his staff will be fully cognizant of
the purpose of t h e referral. I t will be the hospital's responsibility t o make all
necessary a r r a n g e m e n t s for t h e claimant's admission to include issuance of t h e
authorization to report and p a y m e n t of travel costs.
c. T h e claims folder a n d any other p e r t i n e n t records will be forwarded to arrive
a t t h e hospital either before or coincidentally with the claimant concerned.
d. Upon completion of a requested observation and examination performed
p u r s u a n t to these procedures, t h e report s u b m i t t e d by t h e hospital will supersede
all previous reports for purposes of adjudication.
e. A hospital which has performed a special diagnostic s t u d y and examination
under these procedures will also consider questions raised by t h e rating agency of
original jurisdiction and by the Board of Veterans Appeals reflecting medical
opinion a t variance with t h a t reported by t h e hospital. These questions will be
s u b m i t t e d to t h e hospital in writing, clearly setting forth t h e points involved and
t h e reason for t h e c o n t r a r y opinion. T h e claimant will n o t be returned to t h e
hospital, nor will t h e claims folder be returned unless requested. In the event
the questions in dispute remain unresolved, t h e claims folder with all pertinent
documents including t h e findings of t h e hospital will be referred t o the Chief
Medical Director, whose professional decision in t h e m a t t e r will be accepted as
final.
1
The term "Director of Clinic" is defined to Include Director of Clinic in regional offices and the Veterans
Benefits Office, Manager, VA outpatient clinics, or Chief, Outpatient Service in hospital-regional office
centers and hospitals with which a regional office outpatient clinic has been merged.
1856 JUDICIAL REVIEW OF VETERANS' CLAIMS

EXECUTIVE OFFICE OF THE PRESIDENT,

B U R E A U OF T H E B U D C E T ,
Washington, D.C., May 16, 1961.
Hon. O L I N E. TEAOUE,
Chairman, Committee on Veterans' Affairs, House of Representatives,
356 Old House Office Building, Washington, D.C.
M Y D E A R M R . CHAIRMAN: This is in reply to your letter of April 7, 1961, in
which you ask for the detailed views of the Bureau of the B u d g e t regarding
H . R . 852, a n d ask why t h e Bureau of the Budget recommends strongly against
t h e e n a c t m e n t of t h a t bill.
H . R . 852 would authorize t h e Veterans' Administration to establish medical
advisory panels to resolve conflicts of evidence in questions involving service
connection of disabilities or deaths.
Our recommendation was based on two points set forth in the report of the
V e t e r a n s ' Administration on t h e bill, as follows:
(1) T h a t t h e bill would involve medical advisory panels in rendering opinions
on questions of fact n o t necessarily involving medical issues.
(2) T h a t it would be preferable to await the outcome of the Veterans' Admin-
istration s t u d y of t h e adequacy of existing procedures for arriving a t medically
sound decisions in questions of service connection before enacting legislation
designed to bring a b o u t improvements in those procedures.
In addition, while we are in agreement with the a p p a r e n t purpose of the bill
t o provide t h e Administrator of Veterans' Affairs with t h e best possible expert
advice for adjudicating veterans' claims, we are concerned t h a t the bill m i g h t
have t h e effect of unnecessarily limiting t h e a u t h o r i t y of the Administrator to
o b t a i n access to t h e best qualified medical personnel by creating the presumption
t h a t he is t o limit his recourse to outside experts to panels drawn from certain
medical organizations specified in the bill. T h e adjudication of disability a n d
d e a t h benefits is a highly specialized m a t t e r in which m a n y otherwise qualified
medical experts h a v e little or no experience. In this field, therefore, we believe
t h e Administrator should n o t be precluded from utilizing skilled medical staff or
consultants working in the V e t e r a n s ' Administration medical program, or t h a t
he should be directed—specifically or by implication—to seek advice from selected
lists of personnel.
As already indicated, our recommendation should n o t be t a k e n to indicate
disagreement with t h e general purpose of the bill; namely, to bring to bear expert
medical testimony in service-connection cases involving conflicts of medical
evidence. However, there would a p p e a r to be a considerable question as to
whether t h e proposed legislation, in t h e form presented, is necessary a t this time,
and w h e t h e r it would be consistent with principles of sound a d m i n i s t r a t i o n . If
the s t u d y which is now underway should show t h a t i m p r o v e m e n t s in the quality
of adjudication are needed, we believe the first recourse should be for the Admin-
i s t r a t o r t o t a k e action under t h e existing broad legislative a u t h o r i t y .
Sincerely yours,
P H I L L I P S. HUGHES,
Assistant Director for Legislative Reference.

VETERANS' ADMINISTRATION,
O F F I C E OF T H E A D M I N I S T R A T O R OF V E T E R A N S ' A F F A I R S ,
Washington, D.C., May 25, 1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
D E A R M R . T E A G U E : T h a n k you for the o p p o r t u n i t y to c o m m e n t upon H . R . 775
a n d H . R . 849, similar 87th Congress bills, to a m e n d title 38, United States Code,
to establish a C o u r t of Veterans' Appeals and to prescribe its jurisdiction a n d
functions.
T h e extensive s t u d y which y o u r committee gave to similar legislation during
t h e 86th Congress resulted in t h e expression of m a n y and diverse points of view on
t h e question whether t h e r e should be a judicial-type review of a d m i n i s t r a t i v e
decisions respecting claims for all veterans benefits for which court review h a d n o t
already been provided. As I have n o t previously had occasion to formulate a
position on this question, I have carefully reviewed both t h e factors a d v a n c e d b y
t h e p r o p o n e n t s , a n d those advanced b y t h e opponents, of measures which would
provide such a review.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1857

It appears to me that the most cogent argument which has been advanced in
favor of measures such as H.R. 775 and H.R. 849, is that a veteran who is dis-
satisfied with an administrative determination of the Veterans' Administration
should have some completely independent forum to which he may present his
case-—that is, that he should be allowed his day in court. Inherent in this
argument is the thought that until such an independent review of the veteran's
claim can be had the administrative determination, even though it be in fact
correct, is still suspect.
This basic argument is often coupled with the further arguments that a court
review would assure against arbitrary or capricious action by some Administra-
tor of Veterans' Affairs and that the mere possibility of a court review would make
the Board of Veterans' Appeals do a better, more conscientious job. As to these
points, however, I believe it is highly debatable that a court review would be
more effective in either area than the existing oversight by the congressional
committees, such as the Veterans' Affairs Committee, and by the national veterans'
organizations.
The arguments against judicial review appear to fall into two broad categories:
First, that the nature of a veteran's claim is such that an administrative board
will provide a better and more effective review than can be expected through for-
mal court proceedings; and, second, that subjecting Veterans' Administration
decisions to review by a court would adversely affect the agency's ability to serve
veterans as a class.
One purpose of an administrative board, such as the Board of Veterans' Appeals,
is to provide a speedy, informal review, at no expense to the claimant. The
requisite informality is possible only if the appellate agency—board or court—is
staffed with persons who are experts in their field, if it can receive and properly
evaluate all types of evidence and if it conducts its proceedings on a nonadversary
basis. The Board of Veterans' Appeals, with its consultant staff, legal and medi-
cal, is drawn from the - best qualified personnel available in all branches of the
agency with the addition of certain highly trained specialists. No court could be
expected to duplicate the expertise available to the Board unless it should also
duplicate the staff and functions now performed by the Board.
The question of the effect of the existence of a court review upon our adjudicating
procedures is less tangible but, perhaps, is of even more significance. Finality
has been accorded to administrative decisions in the field of veterans' claims, not
solely because they are considered gratuities, but also because the Congress has
felt that the best service to all veterans would result from giving full responsibility
to the administering agency. This is the same underlying reason that all veterans'
matters have been consolidated in one agency. As long as the agency can make
final determination it can operate in a flexible and speedy maimer, able to act on
the merits of individual cases and to adjust to changing situations. If that
finality is removed, the agency must await the decision of the appellate authority
in key cases and otherwise slow down its adjudication procedures to take into
account an ever-growing body of court-made interpretations of the laws. Finally,
no matter what steps are taken to minimize the impact, the existence of a court
will inevitably result in a greater formality of our entire administrative processes.
If nothing else, the necessity of being prepared to defend the agency decision in a
court action will require the establishment of a more formal record than is presently
necessary.
There are two other considerations which, interestingly enough, have been
advanced both for and against court review. One is the effect of court decisions
as precedents for agency actions. ' On the one hand, it has been urged that the
establishment of court precedents would add a desirable certainty to the law. On
the other hand, it has been urged, with equal earnestness, that the development of
court precedents would inject an undue rigidity into the adjudication of veterans'
claims.
The other consideration which cuts both ways is the question of "res judicata"—
that is, the doctrine that the court decree on a specific issue rendered the matter
conclusive between the parties. At present the veteran has the right to request
reconsideration by the Board of its decisions and the Board is very liberal in
granting such reconsideration. And the clpim can always be reopened upon the
submission of new and material evidence. It seems unquestionable that the right
to reopen or request reconsideration in the Veterans' Administration would, as a
practical matter, be impaired since it is only natural that the Board would be
reluctant to reverse a formal court decision. On the other hand, to the extent
that one purpose of court review is to achieve a final settlement of individual
 1858 JUDICIAL REVIEW OF VETERANS' CLAIMS

claims, the doctrine of "res judicata" not only must be applied, but could be
regarded as having some desirable aspects.
I have the greatest respect for the views of those who feel that a court review
of veterans' claims should be provided. However, having carefully considered
the various factors, the principal ones of which have been set forth above, I am
persuaded that such a court would not be in the best interest of either the veteran
or the Nation.
The enactment of legislation providing for a court review of all veterans' claims
would, for the first time in the history of veterans' legislation, require the Govern-
ment to assume an adversary position in respect to such claims. This is the
necessary concomitant of judicial proceedings. It is not objectionable, of course,
in the courts, but I think it would be most unfortunate if the necessity of assuming
such a position before the courts had a tendency to generate a like approach in
the administrative adjudication of claims, as well it might, to the disadvantage of
claimants.
Since this report has been directed to the principle of judicial review and not
to the mechanics of the specific proposals embodied in H.R. 775 and H.R. 849,
it is equally applicable to H.R. 282, H.R. 3263, H.R. 3814, H.R. 3815, H.R. 4134,
H.R. 4696, and H.R. 5992, upon which you also requested our views. There are
technical aspects of certain of these bills which would warrant special comment,
if they were to receive further consideration. We will be glad to discuss such
matter in detail with the committee staff, if requested.
We are unable to furnish an accurate estimate of the cost of these various
proposals, if enacted. With respect to bills such as H.R. 775 and H.R. 849, a
rough comparison may be made to the U.S. Court of Claims which has five judges
and which, we are informed, presently employs 13 commissioners. The 1962
budget estimate for the Court of Claims is $955,000. Should the maximum
number of 50 commissioners authorized by H.R. 775 be utilized by the proposed
Court of Veterans' Appeals, the salaries of the judges and commissioners alone
would total $1,077,500 annually. Supporting personnel, travel expenses, and
other services, as well as costs incident to the preparation and certification of the
record to, and representation before, the court, would of course require substan-
tial additional funds.
In view of the above I cannot favor the enactment of legislation such as here
proposed.
The Bureau of the Budget recommends strongly against enactment of this
legislation. We are also advised by the Bureau that there is no objection from
the standpoint of this administration's program to the presentation of this report
to the committee.
Sincerely,
J. S. GLBASON, Jr., Administrator.

VETERANS' ADMINISTRATION,
OFFICE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,
Washington, D.C., May 25, 1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DEAR M R . TEAGUE: The following comments are furnished in response to
your request for a report by the Veterans' Administration on H.R. 857, 87th
Congress.
The purpose of H.R. 857, as stated by its title, is to amend section 4005 of title
38, United States Code, to provide that cases appealed to the Board of Veterans'
Appeals shall contain a brief statement of the facts of the case appealed, with a
citation and application of the law, together with the recommendations of the
office appealed from.
The bill would require that prior to forwarding the case to the Board the state-
ment of facts be submitted to the appellant, or his agent or attorney, for the pur-
pose of obtaining concurrence as to accuracy, or alternatively a statement of
exceptions. However, disclosure to the claimant of facts concerning himself
would not be required if such disclosure would be injurious to physical or mental
health. The appeal would be dismissed in the event a statement of concurrence
or exceptions was not received within prescribed periods (30 days from date of
forwarding the statement of facts or the remainder of the 1-year appeal period,
whichever is the later).
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1859

A fundamental question which must be considered in evaluating this proposal

is the purpose for which the brief is to be used. Two possibilities occur to us.
The brief may be intended to serve as sort of an index to the case record to aid
those who have responsibility in handling the appeal, as well as the appellant by
apprising him of the facts of record and the reason for denial of benefits sought.
On the other hand, the brief may be intended to serve as a record for appellate
review in lieu of the actual claims folder.
We believe that it will be helpful if we first discuss, albeit briefly, the results
thus far of the pilot study we are conducting in response to your letter of Novem-
ber 25, 1960. This study called for the submission of summary statements of
facts in 100 appealed cases, employing a suggested sample format. Cases were
reported from 10 Veterans' Administration regional offices; the maximum number
of cases from any one regional office was 12. The preparation of all summaries
in the regional offices has been completed and copies furnished to the committee.
The average cost for preparing such a summary was $21.29.
Of the 100 appeals involved in the study, 75 have now been processed by the
Board of Veterans' Appeals. These presented 87 appellate issues, 44 of which
were questions of service connection, 35 increased ratings, 5 pension issues, and
3 other questions; 49 of the 75 cases involved representatives of national service
organizations, and in only 3 of the 49 cases were exceptions noted to the case
summaries.
Appellate dispositions of this same were fairly consistent with statistics in
recent years. We should point out, however, it was the opinion of Board members
deciding these cases that only 17 could have been decided on the summaries
alone. This is not to say that erroneous decisions would have resulted in the
balance of the cases—rather it would have been necessary in the majority to
secure more information than the summaries contained. For the most part the
inadequacies resulted from the paraphrasing of hospital or medical reports,
X-ray readings, laboratory and clinical findings, physicians' and lay statements,
and information regarding social and industrial adjustment. Clearly erroneous
information in the summaries was almost negligible and improvements in both
format and content would naturally be expected through experience.
The summaries which resulted from the pilot study (with anticipated improve-
ments) would probably be adequate to serve as an index to the case records, as
an aid to the Board and the appellant. The question to be decided is whether
the expenditure of the time and money necessary to prepare these summaries
would be justified. From the standpoint of internal Veterans' Administration
operations it would not, since Board members and consultants would still need
to look to the original evidentiary material in the claims folder. These sum-
maries might be of value to appellants and enable them to better construct their
appeals. It is even probable that some appeals which are now processed through
to the Board might be withdrawn.
The alternate to the use of the brief as an index to the case folder would be its
use as the "record" for appellate review, in lieu of the case folder. This would,
of course, mean a major shift in the procedures of the Board and in its responsibili-
ties to the veteran-claimant.
Throughout its existence the Board has considered cases de novo upon review
of the primary evidence in the claims folder, supplemented on occasion by material
submitted by the appellant or his representative. The Board, or any other
appellate review body could, of course, act on a "record" created for that purpose
in lieu of the primary claims folder; but in that event it would be essential that
a format be evolved which would assure that the record be complete and adequate
for the purpose. The preparation of such a record would necessarily require a
high level of professional judgment and effort in deciding what is to be included.
It is highly doubtful whether a veteran's appellate rights could be protected and
equitable decisions insured without verbatim quotes of the pertinent evidence.
The danger of paraphrasing is obvious. Even the use of quotes can be hazardous,
i.e., obscure symptoms or findings in service clinical records, perhaps even in
nurses' notes, sometimes are significant in retrospect in determining service con-
nection for a subsequently developing disease entirely separate from that treated
in service. If credibility of affidavit evidence is involved the entire text would
be necessary for study in relation to the other evidence of record. The preparation
of a record adequate to be the basis for appellate review would be more elaborate
i and consequently more costly and time consuming to prepare than the summaries
employed in the pilot study.
Aside from the question of the type of record which should be compiled there
are several areas in which the bill would need to be perfected. For example,
1860 JUDICIAL REVIEW OF VETERANS' CLAIMS

the bill states that the summary statement need not be submitted to the appellant
if the disclosure of the information in the file would be harmful to his health.
Thus, he would not be in a position to either concur in, or take exception to, the
brief, but the bill does not relieve him from the requirement of doing one or the
other, subject to the penalty of the dismissal of the appeal. A more basic, but
related, question is whether any procedure for a stipulated statement of facts
can be effective without a modification of the current policy which prohibits
appellant from examining the claims folder.
Also problems as to retroactive benefits could arise if an omission of pertinent
data from the record were disclosed at a subsequent date; although, of course,
this could be guarded against by binding the appellant to the facts stipulated in
the "record." We also suggest that it would be preferable to establish a fixed
time limit following submission of the statement to the appellant or his repre-
sentative (say, 30 days) for receipt of the concurrence or exception. Provision
could be made for granting additional time if necessary. If the current provision
of the bill were to remain, the reference to "the one-year period" (line 15, p. 2)
should be changed to "the period" since a lesser period of 60 days is provided
for filing appeals in simultaneously contested claims.
We are unable to give a worthwhile estimate of the cost which would result
from enactment of the bill. As noted, the average cost of the summary statement
prepared in the pilot study was $21.29 per summary. If we apply this average
cost per summary to the current caseload of the Board of Veterans' Appeals, the
figure would be approximately $800,000 per year. However, if a brief which would
be adequate to serve as a basis for appellate decision without recourse to the case
folder were necessary the cost would be much higher. This cost would be offset
to some limited extent in the latter situation by an undetermined saving of the
time of Board members and consultants since they would need not review the
case folder.
Weighing all factors we doubt that the procedure here proposed would be suffi-
ciently beneficial to justify its adoption, if the stipulated statement of facts were
merely to serve as a supplementary tool in an appellate consideration de novo
based upon review of the entire case record. On the other hand its use as the
basis of appellate review would place a substantial additional burden on the
veteran-claimant in the preparation of his appeal, and would place a premium
upon the availability to him of competent counsel.
Under the circumstances we are unable to recommend favorable consideration
of H.R. 857 by your committee.
In view of your urgent request for a report on this bill we have not had sufficient
time in which to ascertain from the Bureau of the Budget its relationship to this
administration's program.
Sincerely,
J. S. GLEASON, Jr., Administrator.

[H.R. 282, 87th Cong., 1st sess.]

A BILL To amend chapter 71 of title 38, United States Code, to permit judicial review of decisions of the
Board of Veterans' Appeals in compensation and pension claims

Be it enacted by the Senate and House of Representatives of the United Stales of

America in Congress assembled, That (a) chapter 71 of title 38, United States
Code, is amended by adding at the end thereof the following new section:
"§ 4009. Judicial review
"(a) Any claimant aggrieved by a decision of the Board involving his right
to payments of pension or compensation may, within one year from whichever
last occurs, the date of mailing of notice of such decision, or the date of enactment
of this section, apply to the United States district court for the district in which
he resides for a review of such decision. Such application shall be made by filing
in the office of the clerk of the court a concise statement of errors of law and
fact complained of, and a copy of such statement shall be served on the manager
of the regional office of the Veterans' Administration which handles claims for
compensation or pension by persons residing in that district. Within thirty
days after the receipt of such statement, the Administrator shall certify and
transmit to the court a copy of the record on which the decision of the Board
was based.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1861

"(b) T h e findings of fact by t h e Board, if s u p p o r t e d b y - a preponderance of

evidence in the record, shall be conclusive, b u t t h e court for good cause shown
m a y p e r m i t t h e introduction of additional evidence. If t h e court determines
t h a t the decision of the Board is n o t in accordance with law or is contrary t o t h e
preponderance of t h e evidence in t h e record before t h e court, t h e court m a y
reverse or modify t h e decision of t h e B o a r d ; otherwise, t h e court shall enter a
j u d g m e n t affirming t h e decision of t h e Board. If t h e court enters a j u d g m e n t
reversing or modifying t h e decision of t h e Board, t h e Administrator shall carry
o u t t h e j u d g m e n t of t h e court.
"(c) J u d g m e n t s of t h e United States district courts under this section shall
be subject t o one review on appeal t o the a p p r o p r i a t e United States court of
appeals, a n d t h e decrees of such courts shall be final."
(b) T h e table of sections a t t h e head of chapter 71 of title 38, United S t a t e s
Code, is a m e n d e d by adding a t t h e end thereof t h e following:
"4009. Judicial review."
S E C . 2. (a) Section 108 of title 38, United States Code, is amended by inserting
"or 4 0 0 9 " immediately after " 7 8 4 " .
(b) Section 211 of title 38, United States Code, is amended b y inserting
", 4009," immediately after " 3 4 0 4 " .
(c) Subsections (c),.(e), (f), a n d (g) of section 784 of title 38, United S t a t e s
Code, are each a m e n d e d by inserting "or section 4009 of this t i t l e " immediately
after " t h i s section" each place it appears.

(H.R. 775, 87th Cong., 1st sess.l

A BILL To amend title 38, United States Code, to establish a Court of Veterans' Appeals and to prescribe
its jurisdiction and functions.
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, T h a t p a r t V of title 38, United States Code, is
a m e n d e d by adding immediately after c h a p t e r 71 thereof t h e following new
chapter:
" C H A P T E R 72—COURT OF VETERANS' APPEALS
" S u b c h a p t e r I — E s t a b l i s h m e n t and Jurisdiction
"Sec.
"4051. Establishment of Court of Veterans' Appeals.
"4052. Provisions relating to Judges.
"4053. Jurisdiction of the court.
"4054. Review by the court.
"4055. Attorneys and agents.
"4056. Authority of Board of Veterans' Appeals.
" S u b c h a p t e r I I — P r o c e d u r e and Administration
"Sec.
"4061. Clerk.
"4062. Commissioners.
"4063. Stenographers; clerical employees; bailiff.
"4064. Fees; charge for court's opinions.
" S u b c h a p t e r I—Establishment and Jurisdiction

" § 4051. E s t a b l i s h m e n t of Court of V e t e r a n s ' Appeals

"(a) There is hereby established t h e C o u r t of Veterans' Appeals (hereinafter
in this c h a p t e r referred to as t h e 'court'), which shall consist of five judges a p -
pointed N from civil life by the President, by and with t h e advice a n d consent of t h e
Senate. T h e President shall designate from t i m e to t i m e one of t h e judges to act
as chief judge.
"(b) T h e court shall hold a t t h e seat of g o v e r n m e n t an a n n u a l t e r m a t a t i m e
t o be fixed by rule of court.
"(c) T h e court m a y prescribe its own rules of procedure a n d d e t e r m i n e t h e
n u m b e r of judges required to constitute a q u o r u m . A vacancy in t h e court shall
n o t impair t h e r i g h t of t h e remaining judges t o exercise t h e powers of t h e court.
"(d) If a j u d g e of t h e court is temporarily unable to perform his duties because
of illness or other disability, t h e President m a y designate a judge of t h e United
States C o u r t of Appeals for t h e District of Columbia to fill t h e office for t h e
period of disability
1862 JUDICIAL REVIEW OF VETERANS' CLAIMS

"§ 4052. Provisions relating to judges

"(a) Each judge of the court shall be entitled to a salary of $25,500 a year,
and shall be eligible for reappointment.
"(b) No person may be appointed as a judge of the court unless he is a member
of the bar of a Federal court or of the highest court of a State, and has been
engaged in the active practice of law for seven or more years. No person may
be appointed as a judge of the court who within the two-year period preceding
his appointment—
"(1) has held elective or appointive office at the State or national level
in any congressionally chartered veterans' organization; or
"(2) has been a civilian officer or employee of the United States serving
in the Veterans' Administration, the Department of Defense, the Bureau of
the Budget, or the General Accounting Office.
"(c) The terms of office of the five judges first taking office after the date of
enactment of this section shall expire, as designated by the President at the time
of nomination, one ten years after such date, one eight years after such date,
one six years after such date, one four years after such date, and one two years
after such date. The terms of office of all successors shall expire ten years after
the expiration of the terms for which their predecessors were appointed, but any
judge appointed to fill a vacancy occurring before the expiration of the term
for which his predecessor was appointed may be appointed only for the unex-
pired term of his predecessor.
"(d) Judges of the court may be removed by the President, upon notice and
hearing, for neglect of duty or malfeasance in office, or for mental or physical
disability, but for no other cause.
"§ 4053. Jurisdiction of the court
"(a) Except with respect to matters which may be reviewed by another court
pursuant to section 784 or 1820 (a) (1) of this title, the court shall have exclusive
jurisdiction to review by appeal all decisions of the Board of Veterans' Appeals
(hereinafter in this chapter referred to as the 'Board').
"(b) Except as provided in section 4056 of this title, all decisions of the court
shall be final and no decision of the court shall be subject to review by any
official or court of the United States.
"§ 4054. Review by the court
"(a) Any claimant aggrieved by a decision of the Board may, within one year
from the date of mailing of notice of such decision, or the date of enactment of
this section, whichever is later, apply to the court for a review of such decision.
Such application shall be made by filing in the office of the clerk of the court a
concise statement of the errors of law and fact complained of. A copy of such
statement shall be served on the Chairman of the Board. Within, thirty days
the Chairman shall certify and transmit to the court a copy of the record on
which the decision of the Board was based, or he may transmit the entire claims
file in the case.
"(b) The court may decline to review any decision of the Board if it appears
that no material error of fact or law is involved in such decision.
"(c) The findings of fact by the Board, if supported by a preponderance of the
evidence in the record before the court, shall be conclusive; but the court, for good
cause shown, may take new or additional evidence, or may remand the case to the
Board for further development. Where a case is remanded to the Board, the
Board may make new or modified findings of fact, and may modify its previous
decision, and shall certify and transmit to the court the record of such further
proceedings. Such new or modified findings of fact shall likewise be conclusive
if supported by a preponderance of the evidence in the record before the court.
The court may conduct such independent investigations as it may deem neces-
sary in any case. The court shall determine the weight and probative value of all
evidence in the record, and shall determine the admissibility of evidence offered
to the court.
"(d) If the court determines that the decision of the Board is not in accordance
with law or is not supported by a preponderance of evidence in the record before
the court, the court shall reverse or modify the decision of the Board; otherwise
the court shall enter a judgment affirming the decision of the Board. If the court
enters a judgment reversing or modifying the decision of the Board, the Admin-
istrator shall carry out the judgment of the court.
"(e) The court may, upon its own motion, review any decision of the Board,
without regard to whether an application for review thereof has been filed. In
such cases, the Chairman of the Board, upon request made by the court, shall
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1863

promptly certify and transmit to the court, for review in accordance with this sec-
tion, a copy of the record on which the decision of the Board was based, or he may
transmit the entire claims file in the case.
"§ 4055. Attorneys and agents
"(a) The court, as a part of each judgment or decree entered, shall determine
and allow reasonable fees for the attorney or attorneys of the claimant or claim-
ants, and apportion same, if proper.
"(b) No person may represent a claimant before the court unless he is a member
of the bar of a Federal court or of the highest court of a State. The court may
prescribe qualifications of persons who may represent claimants in proceedings
before commissioners.
"§ 4056. Authority of Board of Veterans' Appeals
"Nothing in this chapter shall affect the authority of the Board of Veterans'
Appeals to reopen any claim or review or reconsider any decision formerly made by
the Board.
"Subchapter II—Procedure and Administration
"§ 4061. Clerk
"(a) The court may appoint a clerk and an assistant clerk, each of whom shall
be subject to removal by the court. The court shall report any such removal
and the cause thereof to Congress as soon as possible.
"(b) The clerk shall pay into the Treasury all fees, costs, and other moneys
collected by him. He shall make returns thereof to the Director of the Ad-
ministrative Office of the United States Courts under regulations prescribed by
him.
"(c) On the first day of every regular session of Congress, the clerk shall have
published a full and complete statement of all the judgments rendered by the
court during the previous year, showing the dates and amounts thereof and the
parties in whose favor they were rendered, together with a brief synopsis of the
nature of the claims upon which they were renderedj and a statement of the costs
taxed in each case.
"§ 4062. Commissioners
"(a) The court may appoint not more than fifty commissioners who shall be
subject to removal by the court and shall devote all of their time to the duties of
the office. The commissioners shall perform such duties as the court may pre-
scribe, including, but not limited to, conducting hearings, receiving evidence,
taking depositions, qualifying witnesses, and making such reports as the court
may prescribe.
"(b) Each commissioner shall receive basic compensation at the rate of $19,000
a year, and also all necessary traveling expenses and a per diem allowance as
provided in sections 835-842 of title 5 while traveling on official business and away
from Washington, District of Columbia.
"(c) No person may be appointed as a commissioner unless he is a member of
the bar of a Federal court or of the highest court of a State, and has engaged in
the active practice of law for five or more years. No person may be appointed as
a commissioner who within the two-year period preceding his appointment—
"(1) has held elective or appointive office at the State or National level in
any congressionally chartered veterans' organization; or
"(2) has been a civilian officer or employee of the United States serving
in the Veterans' Administration, the Department of Defense, the Bureau of
the Budget, or the General Accounting Office.
"§ 4063. Stenographers; clerical employees; bailiff
"(a) The court shall appoint stenographers and other clerical employees in
such numbers as may be necessary, each of whom shall be subject to removal by
the court.
"(b) The court may appoint a bailiff and a messenger who shall be subject to
removal by the court. The bailiff shall attend the court, preserve order, and
perform such other necessary duties as the court directs.
"§ 4064. Fees; charge for court's opinions
"(a) T h e court shall by rule impose a fee not exceeding S10 for the filing of
any appea 1.
"(b) T h e clerk of the court shall collect for each certified copy of the court's
opinion a f ee of 25 cents for five pages or less; 35 cents for those over five and not
 1864 JUDICIAL REVIEW OF VETERANS' CLAIMS

more t h a n t e n pages; 45 cents for those over t e n pages a n d not more t h a n t w e n t y

p a g e s ; a n d 50 cents for those of more t h a n t w e n t y p a g e s . "
S E C . 2. T h e title and table of c h a p t e r s of p a r t V of title 38, United S t a t e s
Code, is a m e n d e d to read as follows:
PART V—BOARDS, COURT OF VETERANS' APPEALS, AND
DEPARTMENTS
Sec.
"71. Board of Veterans' Appeals -._ ___ __. _. 4001
"72. Court of Veterans' Appeals _ _. 4051
"73. Department of Medicine and Surgery __ _ 4101
"75. Veterans' Canteen Service 4201"
S E C . 3. (a) Section 3405 of title 38, U n i t e d States Code, is amended by inserting
", 4 0 5 5 " immediately after "3404".
(b) Subsection (c) of section 4004 of title 38, United States Code, is a m e n d e d
b y (1) striking o u t "Administrator, a n d " a n d inserting in lieu thereof " A d m i n i s -
t r a t o r , " , a n d (2) inserting immediately before t h e period a t t h e end thereof t h e
following: ", a n d t h e precedent opinions of t h e Court of Veterans' Appeals:".
S E C . 4. (a) Sections 451 and 610 of title 28, United States Code, are a m e n d e d
b y inserting immediately after " C o u r t of Customs a n d P a t e n t Appeals" each
place it a p p e a r s t h e following: ", t h e C o u r t of Veterans' Appeals".
(b)(1) Section 373 of title 28, United S t a t e s Code, is amended by inserting
", or t h e C o u r t of Veterans' Appeals" immediately after " t h e District Court of
t h e Virgin I s l a n d s " .
(2) T h e catchline of such section 373 is a m e n d e d t o read as follows:
" § 373. Judges in Territories and possessions; judges of Court of Veterans'
Appeals
(3) T h e analysis of chapter 17 of title 28, United States Code, is amended by
inserting i m m e d i a t e l y after
"373. Judges in Territories and possessions."
t h e following:
*'; Judges of Court of Veterans' Appeals".

[H.R. 849, 87th Cong., 1st sess.l

A BILL To amend title 38, United States Code, to establish a Court of Veterans' Appeals and to prescribe
its jurisdiction and functions
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, T h a t p a r t V of title 38, United States Code, is
a m e n d e d b y adding immediately .after c h a p t e r 71 thereof t h e following new
chapter:
"CHAPTER 72—COURT OF VETERANS' APPEALS
"Subchapter I—Establishment and Jurisdiction
"Sec.
"4051. E s t a b l i s h m e n t of Court of Veterans' Appeals.
"4052. Provisions relating to judges.
"4053. Jurisdiction of t h e court.
"4054. Review b y t h e court.
"4055. Attorneys a n d a g e n t s .
"4056. A u t h o r i t y of B o a r d of Veterans' Appeals.
"Subchapter II—Procedure and Administration
"Sec.
"4061. Clerk.
"4062. Commissioners.
"4063. S t e n o g r a p h e r s ; clerical employees; bailiff.
"4064. F e e s ; charge for c o u r t ' s opinions.
"Subchapter I—Establishment and Jurisdiction
"§ 4051. Establishment of Court of Veterans' Appeals
"(a) T h e r e is hereby established t h e C o u r t of V e t e r a n s ' Appeals (hereafter in
this c h a p t e r referred t o as t h e 'court'), which shall consist of five judges a p p o i n t e d
 JTFDICIAL REVIEW OF VETERANS' CLAIMS 1865

from civil life by the President, by and with the advice and consent of the Senate.
The President shall designate from time to time one of the judges to act as chief
judge.
"(b) The court shall hold at the seat of government an annual term at a time
to be fixed by rule of court.
"(c) The court may prescribe its own rules of procedure and determine the
number of judges required to constitute a quorum. A vacancy in the court shall
not impair the right of the remaining judges to exercise the powers of the court.
"(d) If a judge of the court is temporarily unable to perform his duties because
of illness or other disability, the President mav designate a judge of the United
States Court of Appeals for the District of Columbia to fill the office for the
period of disability.
"§ 4052. Provisions relating to judges
"(a) Each judge of the court shall be entitled to salary at the rate prescribed
for the judges of the Court of Claims, and shall be eligible for reappointment.
" (b) No person may be appointed as a judge of the court unless he is a member
of the bar of a Federal court or of the highest court of a State, and has engaged
in the active practice of law for seven or more years. No person may be appointed
as a judge of tho court who within the two-year period preceding his appointment—
" (1) has held elective or appointive office at the State or National level in
any congressionally chartered veterans' organization; or
" (2) has been a civilian officer or employee of the United States serving
in the Veterans' Administration, the Department of Defense, the Bureau of
the Budget, or the General Accounting Office.
"(c) The terms of office of the five judges first ta'dng office after the date of
enactment of this section shall expire, as designated by the President, at the time
of nomination, one ten years after such date, one eight years after such date,
one six years after such date, one four years after such date, and one two years
after such date. The terms of office of all successors shall expire ten years after
the expiration of the terms for which their predecessors were appointed, but any
judge appointed to fill a vacancy occurring before the expiration of the term for
which his predecessor was appointed may be appointed only for the unexpired
term of his predecessor.
" (d) Judges of the court may be removed by the President, upon notice and
hearing, for neglect of duty or malfeasance in office, or for mental or physical
disability, but for no other cause.
"§ 4053. Jurisdiction of the court
" (a) Except with respect to matters which may be reviewed by another court
pursuant to section 784 or 1820(a)(1) of this title, the court shall have exclusive
jurisdiction to review by appeal all decisions of the Board of Veterans' Appeals
(hereinafter in this chapter referred to as the 'Board').
"(b) Except as provided in section 4056 of this title, all decisions of the court
shall be final and no decision of the court shall be subject to review by any official
or court of the United States.
"§ 4054. Review by the court
"(a) Any claimant aggrieved by a decision of the Board may, within one year
from the date of mailing of notice of such decision, or the date of enactment of
this section, whichever is later, apply to the court for a review of such decision.
Such application shall be made by filing in the office of the clerk of the court a
concise statement of the errors of law and fact complained of. A copy of such
statement shall be served on the Chairman of the Board. Within thirty days
the Chairman shall certify and transmit to the court a copy of the record on which
the decision of the Board was based, or he may transmit the entire claims file in
the case.
"(b) The court may decline to review any decision of the Board if it appears
that no material error of fact or law is involved in such decision.
"(c) The findings of fact by the Board, if supported by a preponderance of the
evidence in the record before the court, shall be conclusive; but the court, for
good cause shown, may take new or additional evidence, or may remand the case
to the Board for further development. Where a case is remanded to the Board,
the Board may make new or modified findings of fact, and may modify its previous
decision, and shall certify and transmit to the court the record of such further
proceedings. Silch new or modified findings of fact shall likewise be conclusive
if supported by a preponderance of the evidence in the record before the court.

800S2 O—62 10
1866 JUDICIAL BEVIEW OF VETE BANS' CLAIMS

The court may conduct such independent investigations as it may deem necessary
in any case. The court shall determine the weight and probative value of all
evidence in the record, and shall determine the admissibility of evidence offered
to the court.
"(d) If the court determines that the decision of the Board is not in accordance
with law or is not supported by a preponderance of evidence in the record before
the court, the court shall reverse or modify the decision of the Board; otherwise
the court shall enter a judgment affirming the decision of the Board. If the
court enters a judgment reversing or modifying the decision of the Board, the
Administrator shall carry out the judgment of the court.
"(e) The court may, upon its own motion, review any decision of the Board,
without regard to whether an application for review thereof has been filed. In
such cases, the Chairman of the Board shall, upon request made by the court,
promptly certify and transmit to the court, for review in accordance with this
section, a copy of the record on which the decision of the Board was based, or he
may transmit the entire claims file in the case.
"§ 4055. Attorneys and agents
"(a) The court, as a part of each judgment or decree entered, shall determine
and allow reasonable fees for the attorney or attorneys of the claimant or claimants,
and apportion same, if proper.
"(b) No person may represent a claimant before the court unless he is a mem-
ber of the bar of a Federal court or of the highest court of a state. The court
may prescribe qualifications of persons who may represent claimants in pro-
ceedings before commissioners.
" § 4056. Authority of Board of Veterans' Appeals
"Nothing in this chapter shall affect the authority of the Board of Veterans'
Appeals to reopen any claim or review or reconsider any decision formerly made
by the Board.
"Subchapter II—Procedure and Administration
"§ 4061. Clerk
"(a) The court may appoint a clerk and an assistant clerk, each of whom shall
be subject to removal by the court. The court shall report any such removal
and the cause thereof to Congress as soon as possible.
"(b) The clerk shall pay into the Treasury all fees, costs, and other moneys
collected by him. He shall make returns thereof to the Director of the Admin-
istrative Office of the United States Courts under regulations prescribed by him.
"(c) On the first day of every regular session of Congress, the clerk shall have
published a full and complete statement of all the judgments rendered by the
court during the previous year, showing the dates and amounts thereof and the
parties in whose favor they were rendered, together with a brief synopsis of the
nature of the claims upon which they were rendered, and a statement of the costs
taxed in each case.
"§ 4062. Commissioners
"(a) The court may appoint commissioners on a full-time basis in such numbers
as the needs of the court may require, who shall be subject to removal by the
court. The court may also procure, on a temporary or intermittent basis, the
service of individuals as commissioners, in accordance with section 55a of title 5.
The commissioners shall perform such duties as the court may prescribe, including,
but not limited to, conducting hearings, receiving evidence, taking depositions,
qualifying witnesses, and making such reports as the court may prescribe.
"(b) The compensation of each full-time commissioner shall be fixed by the
court, but shall not exceed the maximum rate prescribed in the compensation
schedule for the General Schedule of the Classification Act of 1949. Each com-
missioner shall receive all necessary traveling expenses and a per diem allowance
as provided in sections 835-842 of title 5 while traveling on official business and
away from Washington, District of Columbia.
"(c) No person may be appointed as a commissioner unless he is a member of
the bar of a Federal court or of the highest court of a State, and has engaged in
the active practice of law for five or more years. No person may be appointed
as a commissioner who within the two-year period preceding his appointment—
"(1) has held elective or appointive office at the State or national level in
any congressionally chartered veterans' organization; or
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1867

"(2) has been a civilian officer or employee of t h e United States serving in

t h e Veterans' Administration, t h e D e p a r t m e n t of Defense, t h e Bureau of t h e
Budget, or t h e General Accounting Office.
" § 4063. S t e n o g r a p h e r s ; clerical employees; bailiff
"(a) T h e court shall appoint stenographers a n d other clerical employees in such
n u m b e r s as m a y be necessary each of whom shall be subject t o removal b y t h e
court.
"(b) T h e court m a y appoint a bailiff and a messenger who shall be subject t o
removal by t h e court. T h e bailiff shall a t t e n d t h e court, preserve order, a n d
perform such other necessary duties as t h e court directs.
" § 4064. F e e s ; charge for court's opinions
"(a) T h e court shall by rule impose a fee n o t exceeding $10 for t h e filing of
any appeal.
"(b) T h e clerk of t h e court shall collect for each certified copy of t h e court's
opinion a fee of 25 cents for five pages or less; 35 cents for those over five and n o t
more t h a n ten pages; 45 cents for those over ten pages and not more t h a n t w e n t y
pages; and 50 cents for those of more t h a n t w e n t y p a g e s . "
S E C . 2. (a) T h e title and table of chapters of p a r t V of title 38, United States
Code, is amended to read as follows:
" P A R T V — B O A R D S , C O U R T O F V E T E R A N S ' APPEALS, AND
DEPARTMENTS
"CHAPTER 6ec.
"71. Board of Veterans' Appeals 4001
"72. Court of Veterans' Appeals 4051
"73. Department of Medicine and Surgery - 4101
"75. Veterans' Canteen Service 4201"
(b) T h e table of p a r t s and chapters a t the beginning of title 38, United States
Code, is amended as follows:
(1) By striking o u t
"V. BOARDS AND DEPARTMENTS 4001"
and inserting in lieu thereof
"V. BOARDS, COURT OF VETERANS'APPEALS, AND DEPARTMENTS 4001";
(2) by striking o u t

" P A R T V. B O A R D S A N D D E P A R T M E N T S "
and inserting in lieu thereof

" P A R T V. B O A R D S , C O U R T O F V E T E R A N S ' A P P E A L S , A N D
DEPARTMENTS";
and
(3) B y inserting immediately below
"71. BOARD OP VETERANS' APPEALS 4001"

t h e following:
"72. COURT OF VETERANS' APPEALS 4051"

S E C . 3. (a) Section 3405 of title 38, United States Code, is amended by insert-
ing ", 4055," immediately after "3404".
(b) Subsection (c) of section 4004 of title 38, United States Code, is a m e n d e d
b y (1) striking o u t "Administrator, a n d " and inserting in lieu thereof " A d m i n i s -
t r a t o r , " , and (2) inserting immediately before t h e period a t t h e end thereof t h e
following: ", and t h e precedent opinions of the C o u r t of Veterans' Appeals".
S E C . 4. (a) Sections 451 and 610 of title 23, United States Code, are a m e n d e d
by inserting immediately after " C o u r t of Customs a n d P a t e n t Appeals" e a c h
place it appears t h e following: ", t h e Court of Veterans' Appeals".
(b)(1) Section 373 of title 28, United States Code, is amended b y inserting
", or t h e C o u r t of Veterans' Appeals" immediately after " t h e District C o u r t of
t h e Virgin Islands".
(2) T h e catchline of such section 373 is amended t o read as follows:
1868 JUDICIAL REVIEW OF VETERANS' CLAIMS

"§ 373. Judges in Territories and possessions; judges of Court of Veterans'

Appeals"
(3) The analysis of chapter 17 of title 28, United States Code, is amended by
inserting immediately after
"373. Judges In Territories and possessions"
the following:
"; judges of Court of Veterans' Appeals".
[H.E. 852, 87th Cong., 1st sess.)
A BILL To amend chapter 3 of title 38, United States Code, to authorize the Administrator of Veterans'
Affairs to establish medical advisory panels to resolve conflicts of evidence in questions involving service
connection of disabilities or deaths.
Be it enacted by the Senate and Hbuse of Representatives of the United States of
America in Congress assembled, That (a) chapter 3 of title 38, United States Code,
is amended by adding immediately after section 217 the following:
"§ 218. Medical advisory panels
"(a) The Administrator is authorized to employ experts or consultants on a
temporary or intermittent basis, in accordance with section 55a of title 5, to
serve on panels for the purpose of rendering opinions to him with respect to the
question of whether or not a disability or death is service connected, in cases
where the Administrator has found that there is material doubt or material con-
flict of medical evidence on such question. No person may be a member of any
such panel unless he is a member of a board or section referred to in subsection
(b):
"(b)(1) The boards referred to in subsection - (a) are the following American
Specialty Boards:
"(A) American Board of Anesthesiology
"(B) American Board of Dermatology
"(C) American Board of Internal Medicine
"(D) Sub-Specialty Board—Allergy
"(E) Sub-Specialty Board—Gastroenterology
"(F) Sub-Specialty Board—Pulmonary Diseases
"(G) The American Board of Obstetrics and Gynecology
"(H) American Board of Ophthalmology
"(I) American Board of Orthopedic Surgery
"(J) American Board of Otolaryngology
"(K) American Board of Pathology
"(2) The sections referred to in subsection (a) are the following Medical
Specialty Sections:
"(A) Anesthesiology
"(B) Dermatology
"(C) Diseases of the Chest
"(D) Experimental Medicine and Therapeutics
"(E) Gastroenterology and Proctology
"(F) General. Practice
"(G) General Surgery
"(H) Internal Medicine
"(I) Laryngology, Otology, and Rhinology
"(J) Military Medicine
"(K) Nervous and Mental Diseases
"(L) Obstetrics and Gynecology
"(M) Ophthalmology
"(N) Orthopedic Surgery
"(O) Pathology and Physiology
"(P) Pediatrics
"(Q) Physical Medicine
"(R) Preventive Medicine
"(S) Radiology
"(T) Urology."
(b) The analysis of such chapter 3 is amended by inserting immediately below
"217. Medical advisory panels."
the following:
"218. Medical advisory panels."
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1869

[H.R. 857,8?th Cong., 1st sess.J

A BILL To amend section 4005 of title 38, United States Code, to provide that cases appealed to the Board
o( Veterans' Appeals shall contain a brief statement of the facts of the case appealed, with a citation and
application of the law, together with the recommendations of the office apealed from, and for other
purposes
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, T h a t section 4005 of title 38, United States Code,
is a m e n d e d b y a d d i n g a t t h e end thereof t h e following:
' ' (f) Where a n y question on a claim is appealed to t h e Board, t h e activity con-
cerned shall prepare, a n d forward t o t h e Board with t h e other records in t h e case,
a brief which shall contain a s t a t e m e n t of t h e facts in t h e case, t h e law appli-
cable, and a discussion of t h e application of t h e law to t h e facts of t h e case. Such
brief shall also contain t h e recommendations of t h e a c t i v i t y concerned w i t h re-
spect t o t h e disposition of t h e appeal. Before such brief is s u b m i t t e d t o t h e
Board, t h e a c t i v i t y concerned shall s u b m i t t h e s t a t e m e n t of facts t o t h e a p p e l l a n t
or his a g e n t or a t t o r n e y for t h e purpose of obtaining t h e concurrence of t h e
appellant or his a g e n t or a t t o r n e y t o t h e accuracy of such s t a t e m e n t . In t h e
event of disagreement as to the accuracy of such s t a t e m e n t , t h e a p p e l l a n t or his
agent or a t t o r n e y m a y file with t h e a c t i v i t y concerned, for forwarding t o t h e
Board w i t h t h e records in t h e case, exceptions t o such s t a t e m e n t . Such excep-
tions m u s t be filed within whichever period is the longer, t h e one-year period
within which t h e initial application for review on appeal could have been filed,
or t h i r t y days after t h e d a t e such s t a t e m e n t is s u b m i t t e d ot t h e a p p e l l a n t or his
agent or a t t o r n e y . If concurrence is not obtained, or if within t h e period pre-
scribed in t h e preceding sentence t h e exceptions are n o t filed, t h e appeal shall be
dismissed. N o t h i n g in this subsection shall require t h e disclosure t o a claimant
of a n y m a t t e r s concerning himself when, in t h e j u d g m e n t of t h e Administrator,
such disclosure would be injurious t o t h e physical or mental health of t h e claim-
ant."

[H.R. 3263, 87th Cong., 1st sess.]

A BILL To amend title 38, United States Code, to establish a Court of Veterans' Appeals
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, T h a t p a r t V of title 38, United S t a t e s Code, is
amended by adding immediately after chapter 71 thereof t h e following new
chapter:
"CHAPTER 72—COURT OF VETERANS' APPEALS
"SUBCHAPTER I—ESTABLISHMENT AND JURISDICTION
Sec.
"4051. Establishment of Court of Veterans' Appeals.
"4052. Provisions relating to judges.
"4053. Jurisdiction of the court.
"4054. Review by the court.
"4055. Attorneys and agents.
"4056. Authority of Board of Veterans' Appeals.
"SUBCHAPTER II—PROCEDURE AND ADMINISTRATION
"4061. Clerk.
"4062. Commissioners.
"4063. Stenographers; clerical employees; bailiff.
"4064. Fees; charge for court's opinions.
"Subchapter I—Establishment and Jurisdiction
"§ 4051. Establishment of Court of Veterans' Appeals
"(a) T h e r e is hereby established t h e Court of Veterans' Appeals (hereafter
in this c h a p t e r referred t o as t h e 'court'), which shall consist of three judges
appointed from civil life by t h e President, by a n d with t h e advice and consent
of t h e Senate. T h e President shall designate from time t o t i m e one of t h e judges
to act as chief judge.
"(b) T h e court shall hold a t t h e seat of g o v e r n m e n t an annual t e r m a t a t i m e
to be fixed b y rule of court.
"(c) T h e court m a y prescribe its own rules of procedure and determine t h e
n u m b e r of judges required t o constitute a quorum. A vacancy in t h e court
shall n o t impair t h e right of t h e remaining judges t o exercise t h e powers of t h e
court.
1870 JUDICIAL REVIEW OF VETERANS' CLAIMS

"(d) If a judge of the court is temporarily unable to perform his duties because
of illness or other disability the President may designate a judge of the United
States Court of Appeals for the District of Columbia to fill the office for the
period of disability.
"§ 4052. Provisions relating to judges
"(a) Each judge of the court shall be entitled to salary at the rate prescribed
for the judges of the Court of Claims, and shall be eligible for reappointment.
"(b) No person may be appointed as a judge of the court unless he is a member
of the bar of a Federal court or of the highest court of a State, and has engaged
in the active practice of law for seven or more years. No person may be ap-
pointed as a judge of the court who within the two-year period preceding his
appointment—
"(1) has held elective or appointive office at the State or national level in
any congressionally chartered veterans' organization; or
"(2) has been a civilian officer or employee of the United States serving in
the Veterans' Administration, the Department of Defense, the Bureau of
the Budget, or the General Accounting Office.
"(c) The terms of office of the three judges first taking office after the date of
enactment of this section shall expire, as designated by the President at the time
of nomination, one six years after such date, one four years after such date, and
one two years after such date. The terms of office of all successors shall expire
six years after the expiration of the terms for which their predecessors were
appointed, but any judge appointed to fill a vacancy occurring before the expira-
tion of the term for which his predecessor was appointed may be appointed only
for the unexpired term of his predecessor.
"(d) Judges of the court may be removed by the President, upon notice and
hearing, for neglect of duty or malfeasance in office, or for mental or physical
disability, but for no other cause.
"§ 4053. Jurisdiction of the court
"(a) The court shall have jurisdiction to review by appeal all decisions of the
Board of Veterans' Appeals (hereinafter in this chapter referred to as the 'Board').
The jurisdiction of the court with respect to matters covered by section 784 or
1820(a)(1) of this title shall be concurrent with other courts.
"(b) Except as provided in section 4056 of this title, all decisions of the court
shall be final and no decision of the court shall be subject to review by any official
or court of the United States.
"§ 4054. Review by the court
"(a) Any claimant aggrieved by a decision of the Board may, within one year
from the date of mailing of notice of such decision, or the date of enactment of
this section, whichever is later, apply to the court for a review of such decision.
Such application shall be made by filing in the office of the clerk of the court a con-
cise statement of the errors of law and fact complained of. A copy of such state-
ment shall be served on the Chairman of the Board. The Administrator shall
thereupon make available to the court, at such times and for such periods as the
court may prescribe, the entire claims file in the case, and any other records which
were utilized in the decision appealed from.
"(b) The court may decline to review any decision of the Board if it appears
that no material error of fact or law is involved in such decision.
"(c) The findings of fact by the Board, if supported by a preponderance of the
evidence in the record before the court, shall be conclusive; but the court, for good
cause shown, may take new or additional evidence, or may remand the case to
the Board for further development. Where a case is remanded to the Board, the
Board may make new or modified findings of fact, and may modify its previous
decision, and shall certify and transmit to the court the record of such further
proceedings. Such new or modified findings of fact shall likewise be conclusive if
supported by a preponderance of the evidence in the record before the court. The
court may conduct such independent investigations as it may deem necessary in
any case. The court shall determine the weight and probative value of all
evidence in the record, and shall determine the admissibility of evidence offered
to the court.
"(d) If the court determines that the decision of the Board is not in accordance
with law or is not supported by a preponderance of evidence in the record before
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1871

the court, the court shall reverse or modify the decision of the Board; otherwise
the court shall enter a judgement affirming the decision of the Board. If the court
enters a judgment reversing or modifying the decision of the Board, the Adminis-
trator shall carry out the judgement of the court.
"(e) The Administrator may refer to the court for decision any actual case
pending before the Board of Veterans' Appeals where such case involves an unre-
solved issue of law which is of general interest in the administration of the law.
"(f) The court may, upon its own motion, review any decision of the Board,
without regard to whether an application for review thereof has been filed. In
such cases, the Administrator shall, upon request made by the court, make avail-
able to the court, at such times and for such periods as the court may prescribe,
for review in accordance with this section, the entire claims file in the case, and
other records which were utilized in the decision of the Board.
"§ 4055. Attorneys and agents
"(a) The court, as a part of each judgment or decree entered, shall determine
and allow reasonable fees for the attorney or attorneys of the claimant or
claimants, and apportion same, if proper.
"(b) No person may represent a claimant before the court unless he is a mem-
ber of the bar of a Federal court or of the highest court of a State. The court
may prescribe qualifications of persons who may represent claimants in proceed-
ings before commissioners.
"§ 4056. Authority of Board of Veterans' Appeals
"Nothing in this chapter shall affect the authority of the Administrator to
reopen any claim or review or reconsider any decision formerly made in a case.
"Subchapter II—Procedure and Administration
"§ 4061. Clerk
"(a) The court may appoint a clerk and an assistant clerk, each of whom shall
be subject to removal by the court. The court shall report any such removal
and the cause thereof to Congress as soon as possible.
"(b) The clerk shall pay into the Treasury all fees, costs, and other moneys
collected by him. He shall make -returns thereof to the Direcor of the Adminis-
trative Office of the United States Courts under regulations prescribed by him.
"(c) On the first day of every regular session of Congress, the clerk shall have
published a full and complete statement of all the judgments rendered by the
court during the previous year, showing the dates and amounts thereof and the
parties in whose favor they were rendered, together with a brief synopsis of the
nature of the claims upon which they were rendered, and a statement of the costs
taxed in each case.
"§ 4062. Commissioners
"(a) The court may appoint commissioners on a full-time basis in such num-
bers as the needs of the court may require, who shall be subject to removal by
the court. The commissioners shall perform such duties as the court may pre-
scribe, including, but not limited to, conducting hearings, receiving evidence,
taking depositions, qualifying witnesses, and making such reports as the court
may prescribe.
"(b) The compensation of each commissioner shall be fixed by the court, but
shall not exceed the maximum rate prescribed in the compensation schedule for
the General Schedule of the Classification Act of 1949. Each commissioner shall
receive all necessary traveling expenses and a per diem allowance as provided in
sections 835-842 of title 5 while traveling on official business and away from
Washington, District of Columbia.
"(c) No person may be appointed as a commissioner unless he is a member of
the bar of a Federal court or of the highest court of a State, and has engaged in
the active practice of law for five or more years. No person may be appointed
as a commissioner who within the two-vear neriod preceding his appointment—
"(1) has held elective or appointive office at the State or National level in
any congressionally chartered veterans' organization; or
"(2) has been a civilian officer or employee of the United States serving in
the Veterans' Administration, the Department of Defense, the Bureau of the
Budget, or the General Accounting Office.
1872 JUDICIAL REVIEW OF VETERANS' CLAIMS

" § 4063. S t e n o g r a p h e r s ; clerical e m p l o y e e s ; bailiff

"(a) T h e court shall a p p o i n t stenographers and other clerical employees in
such numbers as m a y be necessary each of whom shall be subject to removal b y
t h e court.
"(b) T h e court m a y a p p o i n t a bailiff and a messenger who shall be subject t o
removal by t h e court. T h e bailiff shall a t t e n d t h e court, preserve order, and per-
form such other necessary duties as t h e court directs.
" § 4064. F e e s ; charge for court's opinions
"(a) T h e court shall by rule impose a fee not exceeding $10 for t h e filing of any
appeal.
"(b) T h e clerk of the court shall collect for each certified copy of t h e court's
opinion a fee of 25 cents for five pages or less; 35 cents for those over five and not
more t h a n ten pages; 45 cents for those over ten pages and not more t h a n t w e n t y
pages; and 50 cents for those of more t h a n t w e n t y pages."
S E C . 2. (a) T h e title and t a b l e of chapters of p a r t V of title 38, United States
Code, is a m e n d e d t o read as follows:

" P A R T V — B O A R D S , C O U R T O F V E T E R A N S ' A P P E A L S , AND

DEPARTMENTS
"CHAPTER Sec.
"71. Board of Veterans' Appeals 4001
"72. Court of Veterans' Appeals - - - 4051
"73. Department of Medicine and Surgery _ _ 4101
"75. Veterans' Canteen Service _ -. 4201"
(b) T h e t a b l e of p a r t s and chapters a t t h e beginning of title 38, United States
Code, is a m e n d e d as follows:
(1) By striking o u t
"V. BOARDS AND DEPARTMENTS - 4001"
a n d inserting in lieu thereof
"V. BOARDS, COURT OF VETERANS' APPEALS, AND DEPARTMENTS ___ .". 4001";
(2) B y striking o u t
"PART V. BOARDS AND DEPARTMENTS"
and inserting in lieu thereof
"PART V. BOARDS, COURT OF VETERANS' APPEALS, AND DEPARTMENTS"; and
(3) By inserting immediately below
"71. Board of Veterans' Appeals 4001"
t h e following
"72. Court of Veterans' Appeals - 4051"
S E C . 3. (a) Section 3405 of title 38, United States Code, is a m e n d e d by inserting
", 4 0 5 5 , " immediately after " 3 4 0 4 " .
(b) Subsection (c) of section 4004 of title 38, United S t a t e s Code, is a m e n d e d
by (1) striking o u t "Administrator, a n d " a n d inserting in lieu thereof " A d m i n -
istrator,", a n d (2) inserting immediately before the period at t h e end thereof t h e
following: ", a n d t h e precedent opinions of the Court of Veterans' A p p e a l s " .
S E C . 4. (a) Sections 451 a n d 610 of title 28, United States Code, are amended
by inserting immediately after " C o u r t of Customs and P a t e n t Appeals" each place
it a p p e a r s t h e following: ", t h e C o u r t of Veterans' Appeals".
(b) (1) Section 373 of title 28, United States Code, is amended b y inserting " ,
or t h e C o u r t of Veterans' Appeals" immediately after " t h e District Court of t h e
Virgin I s l a n d s " .
(2) T h e catchline of such section 373 is amended to read as follows:
" § 373. J u d g e s in Territories and possessions; j u d g e s of Court of Veterans'
Appeals"
(3) T h e analysis of chapter 17 of title 28, United States Code, is amended by
inserting immediately after
"373. Judges in Territories and possessions"
t h e following:
"; judges of Court of Veterans' Appeals".
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1873

IH.E. 3814,87th Cong., 1st sess.]

A BILL To amend chapter 71 of title 38, United States Code, to permit judicial review of decisions of th e
Board of Veterans' Appeals in compensation and pension claims
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That (a) chapter 71 of title 38, United States Code,
is amended by adding at the end thereof the following new section:
"§ 4009. Judicial review
"(a) Any claimant aggrieved by a decision of the Board involving his right to
payments of pension or compensation may, within one year from whichever last
occurs, the date of mailing of notice of such decision, or the date of enactment of
this section, apply to the United States district court for the district in which he
resides for a review of such decision. Such application shall be made by filing in
the office of the clerk of the court a concise statement of errors of law and fact
complained of, and a copy of such statement shall be served on the manager of
the regional office of the Veterans' Administration which handles claims for com-
pensation or pension by persons residing in that district. Within thirty days
after the receipt of such statement, the Administrator shall certify and transmit
to the court a copy of the record on which the decision of the Board was based.
"(b) The findings of fact by the Board, if supported by a preponderance of
evidence in the record, shall be conclusive, but the court for good cause shown
may permit the introduction of additional evidence. If the court determines
that the decision of the Board is not in accordance with law or is contrary to the
preponderance of the evidence in the record before the court, the court may reverse
or modify the decision of the Board; otherwise, the court shall enter a judgment
affirming the decision of the Board. If the court enters a judgment reversing or
modifying the decision of the Board, the Administrator shall carry out the judg-
ment of the court.
"(c) Judgments of the United States district courts under this section shall be
subject to one review on appeal to the appropriate United States court v
of appeals,
and the decrees of such courts shall be final."
(b) The table of sections at the head of chapter 71 of title 38, United States
Code, is amended by adding at the end thereof the following:
"4009. Judicial review."
SEC. 2. (a) Section 108 of title 38, United States Code, is amended by insert-
ing "or 4009" immediately after "784".
(b) Section 211 of title 38, United States Code, is amended by inserting ", 4009,"
immediately after "3404".
(c) Subsections (c), (e), (f), and (g) of section 784 of title 38, United States
Code, are each amended by inserting "or section 4009 of this title" immediately
after "this section" each place it appears.

(H.R. 3815, 87th Cong., 1st sess.)

A BILL To provide for determination through judicial proceedings of claims for compensation on account
of disability or death resulting from disease or injury incurred or aggravated in line of duty while serving
in the active military or naval service, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That, except as provided in this Act, section 19
of the World War Veterans' Act, 1924, as amended (38 U. S. C , sec. 445), section
617 of the National Service Life Insurance Act of 1940, as amended (38 U. S. C ,
sec. 817), and subsection (a) of section 261 of the Veterans' Readjustment Assist-
ance Act of 1952 (38 U. S. C , sec. 971)„ the decisions of the Administrator of
Veterans' Affairs on any question of law or\fact concerning a claim for benefits or
payments under any law administered by the Veterans' Administration shall be
final and conclusive and no other official or court of the United States shall have
power or jurisdiction to review by mandamus or otherwise any such decision.
SEC. 2. In the event of a disagreement with respect to any claim for compensa-
tion under any law administered by the Veterans' Administration on account of
disability or death of an individual resulting from disease or injury incurred or
aggravated in line of duty while serving in the active military or naval service,
an action on the claim may be brought against the United States either in the
United States District Court for the District of Columbia or in the United States
district court for the district in which the claimant or any one of several claimants
 1874 JUDICIAL REVIEW OF VETERANS' CLAIMS

resides, and jurisdiction is hereby conferred upon such, courts to hear and de-
termine all such controversies. The procedure in such actions shall be the same
as in actions brought pursuant to section 19 of the World War Veterans' Act,
1924, as amended (38 U.S.C., sec. 445). All persons having or claiming to
have an interest in such claim may be made parties to such action, and such
as are not residents of or found within the district in which such action is
brought may be made parties pursuant to order of the court by personal serv-
ice of process or by publication or in such other reasonable manner as the court
may direct.
SEC. 3. The courts of appeal and the United States Court of Appeals for the
District of Columbia shall, respectively, exercise appellate jurisdiction with respect
to actions brought under this Act and, except as provided in section 1254 of title
28 of the United States Code, the judgments of the courts of appeal and the
United States Court of Appeals for the District of Columbia shall be final.
SEC. 4. No action on any claim may be brought under this Act unless it shall
have been instituted within two years from the date of the mailing of notice by
the Administrator of Veterans' Affairs of his determination with respect to such
claim or within two years after the date of enactment of this Act, whichever date
is the later. Infants, insane persons, or persons under other legal disability, or
persons rated as incompetent or insane by the Veterans' Administration shall
have two years in which to bring action after the removal of their disabilities.
If an action is seasonably begun and fails for defect in process, or for other reasons
not affecting the merits, a new action, if one lies, may be brought within one
year though the period of limitations has elapsed.
SEC. 5. The provisions of section 19 of the World War Veterans' Act, 1924, as
amended (38 U.S.C., sec. 445), which relate to the subpenaing of witnesses, the
expenses of attorneys of the Veterans' Administration, and the fees, expenses,
and leaves of absence of other employees of the Administration subpenaed as
witnesses in connection with actions under such section 19, shall be applicable to
actions brought under this Act.
SEC. 6. Notwithstanding the provisions of the Act entitled "An Act to provide
that the unexplained absence of any individual for seven years shall be deemed
sufficient evidence of death for the purpose of laws administered by the Veterans'
Administration", approved June 5, 1942 (38 U.S.C., sec. 445), a finding of death
made by the Administrator of Veterans' Affairs shall not be final and conclusive
in an action brought under this Act.
SEC. 7. (a) Section 5 of the Act entitled "An Act to maintain the credit of the
United States Government", approved March 20, 1933, as amended (38 U.S.C.,
sec. 705), is hereby repealed.
(b) Section 5 of the World War Veterans' Act, 1924, as amended (38 U.S.C.,
sec. 428), is amended by striking out "; and all decisions of questions of fact and
law affecting any claimant to the benefits of titles II, III, or IV of this Act shall
be conclusive except as otherwise provided herein".
(c) Section 11 of the Act entitled "An Act to amend section 202 (3), World War
Veterans' Act, 1924, as amended, to provide more adequate and uniform adminis-
trative provisions in veterans' laws, and for other purposes", approved October 17,
1940 (38 U.S.C., sec. lla-2), is hereby repealed.
SEC. 8. Wherever a judgment or decree shall be rendered in an action brought
pursuant to this Act, the court, as part of its judgment or decree, shall determine
and allow reasonable fees for the attorneys of the successful claimant or claimants
and apportion same, if proper, said fees to be paid by the Administrator of
Veterans' Affairs out of the payments to be made under the judgment or decree.
Any person who shall, directly or indirectly, solicit, contract for, charge, or receive,
or who shall attempt to solicit, contract for, charge, or receive any fee or compen-
sation, except as provided in this section, shall be punished by a fine of not more
than $500 or by imprisonment at hard labor for not more than two years, or both.

|H.R. 4134, 87th Cong., 1st sess.]

A BILL To amend title 38, United States Code, to establish a Court of Veterans' Appeals and to prescribe
its jurisdiction and functions
Be it enacted by the Senate and House of Representatives of the United Slates of
America in Congress assembled, That part V of title 3S, United States Code, is
amended by adding immediately after chapter 71 thereof the following new
chapter:
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1875

"CHAPTER 72—COURT OF VETERANS' APPEALS

"Subchapter I—Establishment and Jurisdiction
"Sec.
"4051. Establishment of Court of Veterans' Appeals.
"4052. Provisions relating to judges.
"4053. Jurisdiction of the court.
"4054. Review by the court.
"4055. Attorneys and agents.
"4056. Authority of Board of Veterans' Appeals.
"Subchapter II—Procedure and Administration
"Sec.
"4061. Clerk.
"4062. Commissioners.
"4063. Stenographers; clerical employees; bailiff.
"4064. Fees; charge for court's opinions.
"Subchapter I—Establishment and Jurisdiction
"§ 4051. Establishment of Court of Veterans' Appeals
"(a) There is hereby established the Court of Veterans' Appeals (hereafter
in this chapter referred to as the 'court'), which shall consist of five judges ap-
pointed from civil life by the President, by and w ith the advice and consent of the
Senate. The President shall designate from time to time one of the judges to act
as chief judge.
"(b) The court shall hold at the seat of government an annual term at a time
to be fixed by rule of court.
"(c) The court may prescribe its own rules of procedure and determine the num-
ber of judges required to constitute a quorum. A vacancy in the court shall not
impair the right of the remaining judges to exercise the powers of the court.
"(d) If a judge of the court is temporarily unable to perform his duties be-
cause of illness or other disability, the President may designate a judge of the
United States Court of Appeals for the District of Columbia to fill the office
for the period of disability.
v
"§ 4052. Provisions relating to judges
"(a) Each judge of the court shall be entitled to salary at the rate prescribed
for the judges of the Court of Claims, and shall be eligible for reappointment.
"(b) No person may be appointed as a judge of the court unless he is a member
of the bar of a Federal court or of the highest court of a State, and has engaged in
the active practice of law for seven or more years. No person may be appointed
as a judge of the court who within the two-year period preceding his appointment—
"(1) has held elective or appointive office at the State or National level
in any congressionally chartered veterans' organization; or
"(2) has been a civilian officer or employee of the United States serving
in the Veterans' Administration, the Department of Defense, the Bureau of
the Budget, or the General Accounting Office.
"(c) The terms of office of the five judges first taking office after the date of
enactment of this section shall expire, as designated by the President, at the time
of nomination, one ten years after such date, one eight years after such date,
one six years after such date, one four years after such date, and one two years
after such date. The terms of office of all successors shall expire ten years after
the expiration of the terms for which their predecessors we_re appointed, but any
judge appointed to fill a vacancy occurring before the expiration of the term for
which his predecessor was appointed may be appointed only for the unexpired
term of his predecessor.
"(d) Judges of the court may be removed by the President, upon notice and
hearing, for neglect of duty or malfeasance in office, or for mental or physical dis-
ability, but for no other cause.
"§ 4053. Jurisdiction of the court
"(a) Except with respect to matters which may be reviewed by another court
pursuant to section 784 or 1820(a)(1) of this title, the court shall have exclusive
jurisdiction to review by appeal all decisions of the Board of Veterans' Appeals
(hereinafter in this chapter referred to as the 'Board').
"(b) Except as provided in section 4056 of this title, all decisions of the court
shall be final and no decision of the court shall be subject to review by any official
or court of the United States.
1876 JUDICIAL REVIEW OF VETERANS' CLAIMS

"§4054. 'Review by the court

"(a) Any claimant aggrieved by a decision of the Board may, within one year
from the date of mailing of notice of such decision, or the date of enactment of
this section, whichever is later, apply to the court for a review of such decision.
Such application shall be made by filing in the office of the clerk of the court a
concise statement of the errors of law and fact complained of. A copy of such
statement shall be served on the Chairman of the Board. Within thirty days
the Chairman shall certify and transmit to the court a copy of the record on which
the decision of the Board was based, or he may transmit the entire claims file in
the case.
"(b) The court may decline to review any decision of the Board if it appears
that no material error of fact or law is involved in such decision.
"(c) The findings of fact by the Board, if supported by a preponderance of the
evidence in the record before the court, shall be conclusive; but the court, for
good cause shown, may take new or additional evidence, or may remand the case
to the Board for further development. Where a case is remanded to the Board,
the Board may make new or modified findings of fact, and may modify its previ-
ous decision, and shall certify and transmit to the court the record of such further
proceedings. Such new or modified findings of fact shall likewise be conclusive
if supported by a preponderance of the evidence in the record before the court.
The court may conduct such independent investigations as it may deem necessary
in any case. The court shall determine the weight and probative value of all
evidence in the record, and shall determine the admissibility of evidence offered
to the court.
"(d) If the court determines that the decision of the Board is not in accord-
ance with law or is not supported by a preponderance of evidence in the record
before the court, the court shall reverse or modify the decision of the Board;
otherwise the court shall enter a judgment affirming the decision of the Board.
If the court enters a judgment reversing or modifying the decision of the Board,
the Administrator shall carry out the judgment of the court.
"(e) The court may, upon its own motion, review any decision of the Board,
without regard to whether an application for review thereof has been filed. In
such cases, the Chairman of the Board shall, upon request made by the court,
promptly certify and transmit to the court, for review in accordance with this
section, a copy of the record on which the decision of the Board was based, or he
may transmit the entire claims file in the case.
"§4055. Attorneys and agents
"(a) The court, as a part of each judgment or decree entered, shall determine
and allow reasonable fees for the attorney or attorneys of the claimant or claim-
ants, and apportion same, if proper.
"(b) No person may represent a claimant before the court unless he is a mem-
ber of the bar of a Federal court or of the highest court of a State. The court may
prescribe qualifications of persons who may represent claimants in proceedings
before commissioners.
"§ 4056. Authority of Board of Veterans' Appeals
"Nothing in this chapter shall affect the authority of the Board of Veterans'
Appeals to reopen any claim or review or reconsider any decision formerly made
by the Board.
"Subchapter II—Procedure and Administration
"§4061. Clerk
"(a) The court may appoint a clerk and an assistant clerk, each of whom shall
be subject to removal by the court. The court shall report any such removal and
the cause thereof to Congress as soon as possible.
"(b) The clerk shall pay into the Treasury all fees, costs, and other moneys
collected by him. He shall make returns thereof to the Director of the Adminis-
trative Office of the United States Courts under regulations prescribed by him.
"(c) On the first day of every regular session of Congress, the clerk shall have
published a full and complete statement of all the judgments rendered by the
court during the previous year, showing the dates and amounts thereof and the
parties in whose favor they were rendered, together with a brief synopsis of the
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1877

nature of the claims upon which they were rendered, and a statement of the costs
taxed in each case.
"§4062. Commissioners
"(a) The court may appoint commissioners on a full-time basis in such numbers
as the needs of the court may require, who shall be subject to removal by the court.
The court may also procure, on a temporary or intermittent basis, the service
of individuals as commissioners, in accordance with section 55a of title 5. The
commissioners shall perform such duties as the court ma\' prescribe, including,
but not limited to, conducting hearings, receiving evidence, taking depositions,
qualifying witnesses, and making such reports as the court may prescribe.
"(b) The compensation of each full-time commissioner shall be fixed by the
court, but shall not exceed the maximum rate prescribed in the compensation
schedule for the General Schedule of the Classification Act of 1949. Each com-
missioner shall receive all necessary traveling expenses and a per diem allowance
as provided in sections 835-842 of title 5 while traveling on official business and
away from Washington, District of Columbia.
"(c) No person may be appointed as a commissioner unless he is a member of
the bar of a Federal court or of the highest court of a State, and has engaged in
the active practice of law for five or more years. No person may be appointed
as a commissioner who within the two-year period preceding his appointment—
"(1) has held elective or appointive office at the State or national level
in any congressionally chartered veterans' organization; or
"(2) has been a civilian officer or employee of the United States serving
in the Veterans' Administration, the Department of Defense, the Bureau of
the Budget, or the General Accounting Office.
"§ 4063. Stenographers; clerical employees; bailiff
"(a) The court shall appoint stenographers and other clerical employees in
such numbers as may be necessary each of whom shall be subject to removal by
the court.
"(b) The court may appoint a bailiff and a messenger who shall be subject to
removal by the court. The bailiff shall attend the court, preserve order, and
perform such other necessary duties as the court directs.
"§ 4064. Fees; charge for court's opinions
"(a) The court shall by rule impose a fee not exceeding $10 for the filing of
any appeal.
(b) The clerk of the court shall collect for each certified copy of the court's
opinion a fee of 25 cents for five pages or less; 35 cents for those over five and not
more than ten pages; 45 cents for those over ten pages and not more than twenty
pages; and 50 cents for those of more than twenty pages."
SEC. 2. (a) The title and table of chapters of part V of title 38, United States
Code, is amended to read as follows:
"PART V—BOARDS, COURT OF VETERANS' APPEALS,
AND DEPARTMENTS
"CHAPTER Sec.
"71. Board of Veterans' Appeals 4001
"72. Court of Veterans' Appeals - 4051
"73. Department of Medicine and Surgery 4101
"75. Veterans' Canteen Service 4201"
(b) The table of parts and chapters a t the beginning of title 38, United States
Code, is amended as follows:
(1) By striking out
"V. BOARDS AND DEPARTMENTS.. 4001"
and inserting in lieu thereof
"V. BOARDS, COURT OP VETERANS' APPEALS, AND DEPARTMENTS 4001";
1878 JUDICIAL REVIEW OF VETERANS' CLAIMS

(2) By striking out

"PART V. BOARDS AND DEPARTMENTS"
and inserting in lieu thereof
"PART V. BOARDS, COURT OF VETERANS' APPEALS, AND DEPART-
MENTS";
and
(3) By inserting immediately below
"71. BOARD OF VETERAKS' APPEALS _. _ 4001"

the following:
"72. COURT OF VETERANS' APPEALS 4051".

SEC. 3. (a) Section 3405 of title 38, United States Code, is amended by insert-
ing ", 4055," immediately after "3404".
(b) Subsection (c) of section 4004 of title 38, United States Code, is amended
by (1) striking out "Administrator, and" and inserting in lieu thereof "Admin-
istrator,", and (2) inserting immediately before the period at the end thereof the
following: ", and the precedent opinions of the Court of Veterans' Appeals".
SEC. 4. (a) Sections 451 and 610 of title 28, United States Code, are amended
by inserting immediately after "Court of Customs and Patent Appeals" each
place it appears the following: ", the Court of Veterans' Appeals".
(b) (1) Section 373 of title 28, United States Code, is amended by inserting
", or the Court of Veterans' Appeals" immediately after "the District Couit of
the Virgin Islands".
(2) The catchline of such section 373 is amended to read as follows:
"§ 373. Judges in Territories and possessions; judges of Court of Veterans'
Appeals"
(3) T h e analysis of chapter 17 of title 28, United States Code, is amended by
inserting immediately after
"373. Judges in Territories and possessions"
t h e following:
"; judges of Court of Veterans' Appeals".

(H.R. 4696, 87th Cong., 1st sess.l

A BILL To provide for determination through judicial proceedings of claims for compensation on account
of disability or death resulting from disease or injury incurred or aggravated in line of duty while serving
in the active military or naval service, including those who served during peacetime, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United Stales of
America in Congress assembled, That, except as provided in this Act, section 19
of the World War Veterans Act, 1924, as amended, and section 618 of the National
Service Life Insurance Act of 1940 as amended, the decisions of the Administrator
of Veterans' Affairs on any question of law or fact concerning a claim for benefits
or payments under any laws administered by the Veterans' Administration shall
be final and conclusive and no other official or any court of the United States shall
have power or jurisdiction to review any such decisions.
SEC. 2. In the event of a disagreement with respect to any claim for compen-
sation under any law administered by the Veterans' Administration on account of
disability or death, including peacetime veterans resulting from disease or injury
incurred or aggravated in line of duty while serving in the active military or naval
service, or after the veteran has been honorably discharged from the service
within a period of twelve months if he or she is disabled by disease then it is pre-
sumed that such disease was prevalent at time of discharge, an action on such
claim may be brought against the United States either in the United States Dis-
trict Court for the District of Columbia or in the United States district court for
the district in which the claimant or any one of several claimants resides, and
jurisdiction is hereby conferred upon such courts to hear and determine all such
controversies. The procedure in such actions shall be the same as in actions
brought pursuant to section 19 of the World War Veterans' Act, 1924, as amended
(U.S.C., 1940 edition, title 38, sec. 445). All persons having or claiming to have
an interest in such claim may be made parties to such action, and such as are not
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1879

residents of or found within the district in which such action is brought may be
brought in by order of the court to be served personally, or by publication or in
such other reasonable manner as the court may direct.
SEC. 3. The circuit courts of appeal and the United States Court of Appeals
for the District of Columbia shall, respectively, exercise appellate jurisdiction
and, except as provided in sections 239 and 240 of the Judicial Code, as amended
(U.S.C., 1940 edition, title 28, sees. 346 and 347), the judgments of the circuit
courts of appeal and the United States Court of Appeals for the District of Colum-
bia shall be final.
SEC. 4. No action on any claim may be brought under this Act unless it shall
have been instituted within two years from the date of the mailing of notice by
the Administrator of Veterans' Affairs of his determination with respect to such
claim or within two years after the date of enactment of this Act, whichever date
is the later. Infants, insane persons, or persons under other legal disability, or
persons rated as incompetent or insane by the Veterans' Administration shall
have two years in which to bring action after the removal of their disabilities.
If action is reasonably begun and fails for defect in process, or for other reasons
not affecting the merits, a new action, if one lies, may be brought within one year
though the period of limitations has elapsed.
SEC. 5. The provisions of section 19 of the World War Veterans' Act, 1924,
as amended (U.S.C., 1940 edition, title 38, sec. 445), which relate to the subpenaing
of witnesses, the expenses of attorneys of the Veterans' Administration, and the
fees, expenses, and leaves of absence of other employees of the administration
subpenaed as witnesses in connection with actions under such section 19, shall be
applicable to actions brought under this Act.
SEC. 6. Notwithstanding the provisions of the Act entitled "An Act to provide
that the unexplained absence of any individual for seven years shall be deemed
sufficient evidence of death for the purpose of laws administered by the Veterans'
Administration", approved June 5, 1942 (U.S.C., 1940 edition, supp. V, title 38,
sec. 32a), a finding of death made by the Administrator of Veterans' Affairs shall
not be final and conclusive in an action brought under this Act.
SEC. 7. (a) Section 5 of the Act entitled "An Act to maintain the credit of the
credit of the United States Government", approved March 20, 1933, as amended
(U.S.C., 1940 edition, title 38, sec. 705), is hereby repealed.
(b) Section 5 of the World War Veterans' Act, 1924, as amended (U.S.C., 1940
edition, title 38, sec. 426), is amended by striking out ": and all decisions of
questions of fact and law affecting any claimant to the benefits of titles II, III,
or VI of this Act shall be conclusive except as otherwise provided herein".
(c) Section 11 of the Act entitled "An Act to amend section 202(3), World
War Veterans' Act, 1924, as amended, to provide more adequate and uniform
administrative provisions in veterans' laws, and for other purposes", approved
October 17, 1940 (U.S.C., 1940 edition, title 38, sec. l l a - 2 ) , is hereby repealed.
SEC. 8. Wherever a judgment or decree shall be rendered in an action br ught
pursuant to this Act, the court, as part of its judgment or decree, shall de.ermine
and allow reasonable fees for the attorneys of the successful claimant or claimants
and apportion same, if proper, said fees to be paid by the Administrator of Vet-
erans' Affairs out of the payments to be made under the judgment or decree.
Any person who shall, directly or indirectly, solicit, contract for, charge, or receive,
or who shall attempt to solicit, contract for, charge, or receive any fee or compen-
sation, except as herein provided, shall be guilty of a misdemeanor, and for each
and every offense shall be punished by a fine of not more than !j>500 or by imprison-
ment at hard labor for not more than two years, or by both such fine and im-
prisonment.
Mr. KORNEGAY. We are meeting today to open hearings on all
pending bills relating to judicial review of decisions of the Adminis-
trator of Veterans' Affairs.
Some of the bills provide for review within the existing Federal >
court system, while others provide for the establishment of a Special
Court of Veterans' Appeals with exclusive jurisdiction over decisions
of the Administrator. Also included in the bills under consideration
are H.K. 852 to establish medical advisory panels in cases involving
the service connection of disability or the cause of death; and H.K.
1880 JUDICIAL REVIEW OF VETERANS' CLAIMS

857 to provide that cases appealed to the Board of Veterans' Appeals

shall contain a brief statement of facts, together with a citation of the
applicable rules of law.
We will call as our first witness this morning the Honorable Samuel
L. Devine of the State of Ohio.
STATEMENT OF HON. SAMTJEL L. DEVINE, A U.S. REPRESENTATIVE
FROM THE STATE OF OHIO
Mr. KORNEGAT. Mr. Devine, we will be delighted to hear from you
at this time.
Mr. DEVINE. Thank you, Mr. Chairman. I regret that time hasn't
permitted me to prepare a mimeographed copy of the statement I pro-
pose to make here this morning. B u t I would say that it was my
privilege to appear as the first witness at- the hearings conducted by
this subcommittee during the 86th Congress, I believe, on April 5,
1960, and I am delighted to appear here again in support of this legis-
lation.
The 2 years between these hearings have been well spent and I
would like to commend the committee and especially the staff for
their work on the reports and studies that have been prepared in the
interim. The report of the trip to England and the success of their
system is especially interesting and informative.
The general premise of judicial review was adopted by this com-
mittee when the bill was reported during the 86th Congress and I do
not feel I should burden you gentlemen with further arguments for
the basic theory. I feel that some of the opponents of this theory
are opposed to the practice rather than the principle and do not
resist the general theory of judicial review.
The courts have always assumed the responsibility of interpreting
our laws and since differences do arise between veterans and the Vet-
erans' Administration on interpretation of the various benefit legis-
lation, I feel we should adopt the traditional method of resolving
these controversies.
I t might be well to comment at this point on the study made by
this committee involving 100 test cases in 10 colleges of law on the
interpretation of law and fact. When this study is reviewed it ap-
pears that there are differences between the law schools and the Board
of Veterans' Appeals concerning findings of fact, conclusions of law,
and presumptions as well as weight of the evidence.
Chairman Teague's bill to require findings of fact and separately
stated conclusions of law may improve this condition.
The study does indicate, however, that differences of opinion are
not limited to veterans and the Veterans' Administration but that
completely impartial persons can arrive at a different solution using
the same fact pattern.
F o r the sake of brevity, I shall only discuss the difference between
H . E . 3263, which I introduced on the 25th day of January 1961, and
the committee bill of the 86th Congress. Basically they are the same,
but I have suggested a few changes.
On page 2 of H.R. 3263 I have suggested that the court be limited
to three judges when it is established.
 JUDICIAL BEVIEW OF VETERANS' CLAIMS 1881

I suggest only three judges for the following reasons:

This is the normal number of judges used in proceedings of the
circuit court of appeals. I t is also the number used on the present
Court of Military Appeals.
I t is further my opinion that this, being a new court, three judges
would be able to arrive at decisions and initiate operating procedures
easier than would a five-judge court.
I t would also appear that in the event the court does require addi-
tional justices after a few years of experience, it would be easier to
add judges and consider the possibility of making them circuit judges
rather than to establish an original court made up of five members.
This suggestion is reflected in the terms of office for each judge
and I have suggested a term of 6 years for each rather than the 10-
year term of the committee bill.
On page 4, I suggest that the Court of Veterans' Appeals have
jurisdiction of all decisions rendered by the Board of Veterans' A p -
peals. I t would have concurrent jurisdiction with other courts in
those matters affecting insurance and G I loan questions. I feel that
one court should have jurisdiction over all Veterans' Administration
matters and in the event any case should arise whereby the determina-
tion by the court would affect eligibility of a veteran to receive general
benefits plus insurance or loan benefits, then one court could dispose
of the entire question.
I n the event the sole question is restricted to insurance or G I loan
matters, the present jurisdiction of other courts will remain and the
Court of Veterans' Appeals would not necessarily assume jurisdiction
in such an instance.
On page 5 of this bill, I have proposed a change in the submission
of material by the Administrator of the Veterans' Administration
to the court.
I t might be detrimental to the veteran to have his claim filed in the
Court of Veterans' Appeals for an extended period of time when
other questions may be before the Veterans' Administration. I, for
this reason, suggest the court direct the claim file be forwarded only
at such time as it is needed for the presentation of the case. The
material in the file would be available at the discretion of the court
but the physical location could remain in the Veterans' Administration
pending other applications by the veteran.
On page 6 I have suggested that the Administrator may refer cases
to the court for a decision when an unresolved question of law exists.
This would allow the Administrator to ask for, in essence, a declara-
tory judgment on certain issues. These questions should only be
actual cases, however, and not hypothetical questions.
On page 7 I suggest that the "Board of Veterans' Appeals" be
changed to "The Administrator" in the section applying to reopening
of any case for review or reconsideration. There may be instances
in which, after the court has acted, newly discovered or official evi-
dence could be submitted, which would qualify the case for original
review at the rating board level.
I n such a case the Board of Veterans' Appeals should not be the
single agency authorized to reopen the claim.

S00S2—62 11
1882 JUDICIAL REVIEW OF VETERANS' CLAIMS

On page 9 I suggest only permanent commissioners be considered-

Part-time or intermediate commissioners may not devote the effort
required to make the system effective.
The remaining portions of the bill are similar to the committee ver-
sion and adopt the provisions of compensation of both judges and
commissioners.
One further comment is in order, however, and that pertains to the
designation of the court as a court of the United States.
The Judicial Conference in 1961 considered these suggestions for a
Court of Veterans' Appeals and concluded that such an independent
court would be approved. Their report, however, discussed certain
points about the administration of such a court and recommended it
not be a court of the United States.
They compared it to the Court of Military Appeals and suggested
a similar treatment.
I f the committee feels the position of the Judicial Conference is
sound, I shall be pleased to accept your decision and do not have such
strong views on this point to contest the committee's conclusion.
These few comments conclude my statement, gentlemen, and I thank
you for the opportunity to express them. I feel that legislation is
needed. However, I am more concerned that it be right rather than
hasty and the manner in which this committee has considered the bill
I think is worthy of tremendous commendation. This matter, as you-
know, came up late in the session; in fact I think at one time the bill
appeared on the Consent Calendar, if I am not mistaken, and was
objected to or passed over without prejudice.
I would like to commend this committee on the very thorough devo-
tion to the study of this overall problem.
T h a t concludes my statement.
Mr. KORNEGA Y. Mr. Haley, any questions %
Mr. HALEY. Mr. Chairman, please let me say to the distinguished
gentleman that I am happy that he brought a bill here of this type.
I think it required a great deal of study and consideration and I am
sure that we all recognize there should be some kind of court established'
along this line.
I note, Mr. Devine, on page 2, line 11, where the disability of one-
of the members of the court because of illness or other things may oc-
cur, and you want to allow the President to designate a judge from the
District of Columbia. Why, may I ask, do you confine the judge to
the District of Columbia ? We, of course, have very fine surrounding-
States here and it might just be that the President could more ably
pick a man from Maryland or some other p a r t of the country who-
might be better able and more competent to carry out these duties. Is
there any particular reason why it should be the District of Columbia ?
Mr. DEVINE. No particular reason, Mr. Haley. I am not married to
that provision. Actually, I would imagine that this court will sit in
the District of Columbia, generally speaking, and, as a matter of con-
venience, it was suggested that the President might wish to designate
a judge of the court of appeals here locally. But, as I say, I am n o t
married to that provision and if the member would see fit to offer ait
amendment to that, I would certainly have no objection.
 JUDICIAL' REVIEW OP VETERANS' CLAIMS 1883

Mr. HALEY. Of course, this court would operate here in the District
of Columbia and on the other hand it may well be operating over in
Virginia or Maryland, if they wanted to be established over there,
could it not?
Mr. DEVINE. T h a t is true. Of course, in my basic conservatism I
believe, and I believe the member's record is the same, I thought
perhaps it might be expensive to bring in a district judge from maybe
California or some place like that to sit here.
Mr. HALEY. Well, I wouldn't think the President would do that,
but, nevertheless, you are not married to that idea at all ?
Mr. DEVINE. T h a t is correct.
Mr. HALEY. NOW, the qualifications of these judges, Mr. Devine.
They must have been engaged in the practice of law for 7 or more
years.
You don't require any judicial experience? Isn't this somewhat of
a specialized field in the first place ?
Mr. DEVINE. Specialized field. Yes, sir; it would be. I might say
to the gentleman that in this connection I have another bill pending
in the Congress relating to qualifications for all judges, not only on
the Supreme Court of the United States but on other levels that would
require certain experience in the practice of law. That, of course, is
not encompassed in this particular piece of legislation.
Mr. HALEY. I might say to the gentleman that if we will get a little
bit of legal experience on the Supreme Court of the United States, then
I think the gentleman is moving in the right direction because we cer-
tainly need some there.
Mr. DEVINE. Thank you, sir.
Mr. HALEY. I think that is all, Mr. Chairman.
Mr. KORNEGAY. Mr. Saylor.
Mr. SAYLOR. Sir, I am very sorry I was not here to hear your full
statement. I know your position on this. W e discussed it a number
of times. I will join with you in the feeling if it is accomplished it
will be a real step forward.
Mr. KORNEGAY. Mr. Ellsworth.
Mr. ELLSWORTH. I do not have any questions but I want to say
thank you very much for the very clear testimony this morning and I
appreciate it. This is, of course, the first time I have had any exposure
to this and I appreciate your clear presentation this morning.
Mr. DEVINE. Thank you very much.
Mr. KORNEGAY. I have just a couple of questions. I know this is an
informal statement but also I would like for you t o state, so we will
have it in this record, whether or not you are an attorney, and put
into the record, if you don't mind, some of your prior experiences, if
you are an attorney, as an attorney.
Mr. DEVINE. Yes, sir, Mr. Chairman, I was admitted to the prac-
tice of law in the State of Ohio in August of 1940. I practiced law,
except for a period of 5 years, when I was associated with the Fed-
eral Bureau of Investigation, and I was a prosecuting attorney in my
jurisdiction, a county that handled 700,000 people, for a period of
nearly 4years.
Mr. KORNEGAY. And in coming to Congress, have you had occa-
sions to have dealings with veterans that have had claims and trou-
bles which they felt they were not satisfied with ?
1884 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. DEVINE. The fact is, Mr. Chairman, that is the reason I became
interested in legislation calling for judicial review of Veterans' Ad-
ministration cases and I would like to invite the chairman's atten-
tion to the statement I submitted for the record on April 5, 1960,
which commences on page 2290 of the hearings of the special sub-
committee in which I outline many of the reasons I feel this is neces-
sary.
Mr. KORSTEGAY. Thank you, Mr. Devine, for a very fine statement.
Mr. DEVINE. Thank you very much.
Mr. KORNEGAY. Mr. Harold J. Nussbaum.
W e are happy to have you with us. We will be glad to have your
statement.

STATEMENT OP HAROLD J. NUSSBAUM, ASSOCIATION OF PLAIN-

TIFFS' TRIAL ATTORNEYS OF THE DISTRICT OF COLUMBIA
Mr. NTJSSBATTM. I am Harold J . Jfussbaum and an attorney in the
private practice of law in the District of Columbia. I appear here
today to testify in behalf of the Association of Plaintiffs' Trial At-
torneys of the District of Columbia. T h a t is a recent change of
name from the former name, the Association of Claimants' Attorneys.
This organization has about 200 members composed of and includ-
ing many of the preeminent trial attorneys in the District of Colum-
bia area engaged in active day-to-day trial practice and basically
in the representation of persons making personal injury claims.
This leads us directly to our interest in the field of veterans
compensation.
A t the annual meeting of the association on March 1, 1961, the
association unanimously endorsed H.E. 849 of the 87th Congress. I
was designated to present the association's views to this committee,
chiefly, I believe, because of my experience in the field of veterans'
claims on a very personal basis.
F r o m 1946 to 1953, before entering private practice, I was national
service officer of the Disabled American Veterans.
I n my own practice, I have handled national life insurance suits
in large numbers. As a national service officer of the Disabled Amer-
ican Veterans I handled claims at every level of the Veterans' Ad-
ministration from the regional office rating board through and in-
cluding the Board of Veterans' Appeals arid administrative
presentations.
I saw a multitude of cases which I have always been convinced as
a lawyer, would have been won in the courts but which are moldering
away in the VA files because the decisions of the Administrator are
immune from judicial review.
. Until the enactment of section 19 of the World W a r Veterans'
Act of 1924, the Administrator was also immune from review in
cases involving insurance. That act changed the picture and I think
it is worth looking at to see what the result has been since section 19
• and I think this committee knows the result.
I would like to tell this committee my own personal experience
in the filing of national service life insurance suits. I n the.last 4
years I have filed approximately 75 suits in the U.S. District Court
for the District of Columbia for national service life insurance. I
 JUDICIAL REVIEW OP VETERANS' CLAIMS 1885

have been successful in over 90 percent of the cases. Please note that
each case was a denial by the Veterans' Administration which would
have remained final if Congress had not opened the door in the Na-
tional Service Life Insurance Act of 1940, which granted the same
right of judicial review as section 19 of the World W a r Veterans
Act of 1924. This is in the form of a trial de novo, not in fact an
appellate review. Most of the judgments which I have obtained
in the national service life insurance cases have been by consent of
the Justice Department and, gentlemen, that is a very significant
thing to tell you. I t means that the Department of Justice does not
agree with the position taken by the Administrator of Veterans'
Affairs in most of the national service life insurance cases which I
have filed. I cannot say that applies to all cases. I know it applies
to mine.
I n the balance of the cases in which I have been successful, the
majority were won on motion, not on a trial of the case, which means
that the judges of the district court have agreed and have decided
these cases, not on having to present new sets of facts to the court but
simply on the interpretation and construction of the statutes which
Congress has enacted.
I n particular, it might be worth calling the committee's attention
to "Why Judicial Eeview."
I t is almost 17 years since the fighting in World W a r I I came to
an end. During that period the Administrator of Veterans' Affairs
adhered religiously to the view that an illegitimate child was not
entitled to be the beneficiary of gratuitous national service life in-
surance. Those were the $5,000 policies which Congress granted to
the men trapped in Bataan, Corregiclor, the North Atlantic submarine
patrol, who didn't have time before the outbreak of fighting to apply
for national service life insurance. You designated the beneficiaries.
You said first the widow would take if she survived and were un-
remarried; second, a child; third, a dependent parent.
Now, when you said a child, you didn't qualify the word. The
Veterans' Administrators saw nt to qualify it as being a legitimate
child only. The Trancts case, and the whole jacket is worth looking
at, to show you how this operates, civil action 1295-60 of the district
court, U.S. District Court for the District of Columbia. On cross
motions for summary judgment, Judge Holtzoff, with this novel ques-
tion presented for the first time, ruled that an illegitimate child was
entitled to the insurance, that Congress had not limited the class of
children.
Mr. HALEY. J u s t a moment there. You say he ruled that he was
not or was?
Mr. NTTSSBAUM. That he was entitled.
Mr. HALEY. H e was entitled?
Mr. NusSB.urar. That is correct. The Government appealed that
ruling.
On the 18th of May 1961, the U.S. court of appeals, in a unani-
mous opinion, upheld the ruling of Judge Holtzoff and said it would
not interpolate the words "illegitimate" or "legitimate" in a statute
where Congress had not inserted it.
Now, do j'ou gentlemen think that one single case has been paid
in respect to tlie opinion of the court of appeals? The answer is
1886 JUDICIAL REVIEW OF VETERANS' CLAIMS

"No." The only case that has been paid is the Tranas case. Tomor-
row morning I go before J u d g e Curran in the U.S. district court on
eight motions for summary judgment which I have been compelled
to file. The Administrator is not honoring the final ruling of the
U.S. court of appeals on this question.
Last Thursday, the Tawaran case came down. I n that case we
have another interesting question, decided for the first time, and mind
you, these children have been waiting for payment all of this time.
You said in the statute that a widow take if she would survive and
were unremarried. She has 7 years in which to file suit. W h a t hap-
pens if she never files a claim ? The Administrator has said, " I am
not going to pay anybody else." He has denied the rights of the
children.
The U.S. court of appeals lias just ruled that the Administrator
was wrong and that the lapse by nonfiling on the p a r t of the widow
was not a bar to the children, especially for this reason, because you
also said in the statute that the 6-year limitation in the statute did not
apply to children. They have 3 years from the time they attain age 21.
I don't expect that the Administrator is going to pay a case under
the Tawaran case either, gentlemen. I expect I am going to have to
fight every single one of them out in the courthouse.
I would like to enter a personal view with respect to differences
between pension for death or disability not due to service, which I
believe is a gratuity which the Government can give or withliold, but
I do not believe it fair nor equitable to put in the same class the pay-
ment of compensation for death or disability due to service.
The Founding Fathers believed in a social contract, and they refer
to it in the Declaration of Independence when they say the sovereign
broke his part of the contract and we had a right to declare ourselves
an independent Nation. I think that is part of the reason that the
citizen, the subject, has a duty to serve the sovereign in time of war.
But it is a two-way street. And I think that the vagueness—I re-
tract that, it isn't vagueness—it is unfortunate that a body of law
has grown up which has declared the payment for death or disability
due to service a gratuity. I t is not fair nor equitable to so hold.
That dates back over 100 years to the first case I recall which came
about on the claim of a Revolutionary W a r Alteram
I think there are humane and patriotic reasons why that distinc-
tion should be made sharp and clear and that the word "gratuity"
should no longer apply to the payment of compensation as I have
defined it, and as Congress has previously defined it.
There is always a question in a large agency such as the Veterans'
Administration, when you propose to take the step of judicial review
you must ask the question, "Is the Administrator wanting?" and
"Is there a justification for judicial review?"
I would say there is clear evidence in our experience in the insur-
ance law that we reversed the Administrator so many, many times
and without the congressional blessing which opened the courts to
us. those decisions would not have been obtained.
The flaw in the system under which the Veterans' Administration
operates is t h a t the Veterans' Administration wears three hats. I t
is the prosecutor, it is the judge, it is the jury. Under our judicial
system that is intolerable. No lawyer can accept it. I t does vio-
lence to every theory of judicial administration.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1887

L e t ' s t a k e a look a t a n o t h e r a c t u a l case, Sinlao v. United States.

I t w a s decided b y t h e U . S . C o u r t of A p p e a l s f o r t h e D i s t r i c t of C o -
l u m b i a C i r c u i t on N o v e m b e r 6, 1959. I t is r e p o r t e d afc 106 U . S .
A p p e a l s D . C . 263 a n d 271 F e d . ( 2 d ) 846.
T h i s is t h e case of t h e w i d o w of a soldier killed i n action. S h e
s o u g h t j u d i c i a l review of a V A decision w h i c h denied h e r both d e a t h
c o m p e n s a t i o n a n d n a t i o n a l service life i n s u r a n c e benefits. T h e c o u r t
correctly h e l d t h a t s u i t on t h e i n s u r a n c e w a s b a r r e d b y t h e s t a t u t e of
l i m i t a t i o n s . A n d i t said t h e n t h a t i t lacked p o w e r t o g r a n t j u d i c i a l
relief on t h e c o m p e n s a t i o n claim even i f t h e d e n i a l w e r e a r b i t r a r y
or capricious. N e v e r t h e l e s s t h e U . S . C o u r t of A p p e a l s f o r t h e D i s -
t r i c t of C o l u m b i a C i r c u i t p o i n t e d o u t t h a t , as a m a t t e r of l a w , t h e
A d m i n i s t r a t o r of V e t e r a n s ' Affairs w a s p l a i n l y w r o n g i n d e n y i n g
compensation b u t t h a t t h e c o u r t w a s powerless.
J u d g e W i l b u r M i l l e r , w h o is n o w t h e chief j u d g e of t h a t c o u r t of
a p p e a l s , dissented i n p a r t , d e c l a r i n g t h a t w i t h r e s p e c t t o t h e compensa-
t i o n question h e w o u l d h a v e viewed t h e finality s t a t u t e w i t h l i b e r a l i t y
a n d w o u l d h a v e g r a n t e d relief t o t h a t w i d o w b y m a n d a t o r y i n j u n c t i o n
a g a i n s t t h e A d m i n i s t r a t o r of V e t e r a n s ' Affairs.
I s t h i s case u n u s u a l ? D o e s t h e A d m i n i s t r a t o r correct h i s e r r o r a f t e r
i t is p o i n t e d o u t b y t h e c o u r t s ? W e w o u l d like t o m e n t i o n t o y o u t h a t
t h e l a s t sentence of t h e Sinlao m a j o r i t y o p i n i o n is t h i s :
The Administrator, of course, may correct his own error if he sees fit.
N o w , g e n t l e m e n , w i t h g r e a t deference I m u s t tell y o u t h e A d m i n i s -
t r a t o r l a u g h s a t t h e c o u r t s . H e a d h e r e s t o t h e s a m e view h e h a d p r i o r
to Sinlao a n d I c a n d e m o n s t r a t e i t f o r you. I h o l d i n m y h a n d G e n -
e r a l Counsel's o p i n i o n of t h e V e t e r a n s ' A d m i n i s t r a t i o n , G . C . 7 - 6 1 ,
d a t e d M a r c h 7 , 1 9 6 1 . I t is i n t h e Bautista case. I f t h e c o m m i t t e e d e -
sires, I will leave b o t h of t h e s e o p i n i o n s f o r its use.
M r . SAXLOR. M r . C h a i r m a n , I a s k u n a n i m o u s consent t h a t t h e t h r e e
opinions, t h e Sinlao, Mondido, a n d Bautista cases r e f e r r e d t o b y M r .
N u s s b a u m b e m a d e a p a r t of t h e files.
M r . K O E N E G A Y . Y e s . W i t h o u t objection i t is so o r d e r e d .
( T h e material follows:)
UNITED STATES COURT OP APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 14970
GLICERIA RAMOS VDA D E SINLAO, APPELLANT
v.
UNITED STATES OF AMERICA AND SUMNER G. WHITTTER, ADMINISTRATOE OF
VETERANS' AFFAIRS, APPELLEES
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Decided November 6, 1959
Mr. Ross O'Donoghue, with whom Miss Mary if. Connelly was on the brief,
for appellant.
Mr. Howard, E. Shapiro, Attorney, Department of Justice, for appellees. As-
sistant Attorney General Douo and Messrs. Oliver Oasch, United States Attor-
ney, and Morton Hollander and Peter H. Schiff, Attorneys, Department of Jus-
tice, were on the brief for appellees.
Before EDGERTON, WILBUB K. MILLER and DANAHER, Circuit Judges.
PER CURIAM : Appellant sought review of a decision of the Administrator of
Veterans Affairs terminating payments of death compensation and National
1888 JUDICIAL REVIEW OF VETERANS' CLAIMS

Service Life Insurance under the Veterans' Benefits statute. 1 The Administrator
allowed the claims shortly after the death of appellant's husband, an Army pri-
vate, but ceased payments in 1948. Appellant filed suit in 1957. The District
Court dismissed the complaint.
The court rightly held that suit on the insurance claim was barred because not
brought within the time required by statute, namely "within six years after
the right accrued for which the claim is made * * *." 38 U.S.C. § 784(b).
But unless appellant has remarried, she is entitled to death compensation
payments. A "purported remarriage", if "void", would not terminate her rights.
38 U.S.C. §101(3). She has lived continuously in the Philippines, where a
marriage cannot be contracted without a ceremony. There has been no cere-
mony, and therefore no remarriage unless a "purported" and "void" one. The
Administrator ceased payments on the theory that because appellant had
lived with a man, and had represented herself as his wife, she was "estopped to
deny remarriage". Since there is no showing that the Administrator or the
United States has been damaged by reliance on appellant's conduct or represen-
tation, there would be no basis for a finding of estoppel, even if we were to as-
sume that a widow might in some circumstances be estopped from asserting her
statutory right. The Administrator's rejection of appellant's compensation
claim cannot be reconciled with the intention Congress has expressed.
But Congress has provided, with exceptions not relevant to the compensation
claim, that "the decision of the Administrator on any question of law or fact con-
cerning a claim for benefits or payments under any law administered by the Vet-
erans Administration shall be final and conclusive, and no other official or any
court of the United States shall have jurisdiction to review any such decision."
38 U.S.C.A. § 211(a). "It was the purpose of [the] statute to remove the possi-
bility of judicial relief even if the action of the Administrator was arbitrary and
capricious." Balm v. Gray, 92 U.S. App. D.C. 188,189, 203 F. 2d 625, 626. There-
fore the District Court rightly held it had no jurisdiction in respect to the com-
pensation claim. Lonyernecker v. Bigley, 97 U.S. App. D.C. 144, 229 F. 2d 27.
Of. Cook v. Bigley, 99 U.S. App. D.C. 180, 238 F. 2d 41. Even in Wellman v.
WlUttier, U.S. App. D.C. , 259 F 2d 163, 169, on which appellant relies,
we said: "We have repeatedly recognized that nonreviewability must be ac-
corded to the Administrator's decisions as to claims."
The Administrator may of course correct his own error if he sees fit.
Affirmed,.
WILBUR K. MILLER, Circuit Judge, concurring in part and dissenting in part:
I agree that Mrs. Sinlao's suit was barred by limitation insofar as it sought
to recover on the insurance claim and I concur to that extent in the court's
opinion. But I dissent with respect to the compensation feature.
The widow of a soldier killed in action, who has not remarried, 2 is entitled
to compensation at specified monthly rates. 38 U.S.C. § 321. The Administra-
tor found the appellant to be such a widow, allowed her claim for compensation,
and for some time issued monthly checks therefor. Later he terminated pay-
ments under the award because of his mistaken notion that, by her immoral
conduct, the widow was "estopped to deny remarriage," although he admitted
remarriage had not in fact occurred. Common law marriage is not recognized
in the Philippines where Mrs. Sinlao lived.
This court affirms the District Court's denial of jurisdiction to review the
Administrator's action in stopping the payments because of the provision in 38
U.S.C. § 211(a) that "the decisions of the Administrator on any question of law
or fact concerning a claim for benefits or payments" shall be final, conclusive
and unreviewable.
The majority speak of "The Administrator's rejection of appellant's compen-
sation claim." Strictly speaking, there was no rejection. The Administrator's
allowance of the appellant's compensation claim placed upon him the duty of
issuing a check to her each month as long as she did not remarry. In effect,
the statute so provides. As I have pointed out, the Administrator stopped issu-
ing the checks because of his idea that she was estopped to deny remarriage,
although he knew no sort of remarriage had in fact occurred. This erroneous
conception furnished no basis for terminating compensation payments, so the
Administrator's action was an arbitrary and capricious refusal to perform a
plain statutory duty.

138 U.S.C §§ 101i(3), 321. 322: §602 of the National Life Insurance Act of 1940,
54 Stat. 1009, as amended, 38'U.S.C. I 802(d)(2) (1952).
= 38 U.S.C. § 101(3).
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1889

Wlien Mrs. Sinlao requested the Administrator to continue sending the

monthly checks, she was not asserting an original claim for benefits or payments,
concerning which his decision is unreviewable. She was claiming the monthly
checks which should be issued automatically under an allowed compensation
claim. Her petition that the District Court review his arbitrary action should
therefore have been treated as an application for a mandatory injunction re-
quiring the Administrator to do his clear statutory duty, as to which he has
no discretion. It was not a petition to review the Administrator's denial of
a claim to compensation. His previous award and payment of compensation
had been statutorily required by the conditions which existed, and those condi-
tions admittedly had not changed: Mrs. Sinlao was still a widow who had not
remarried. In these circumstances, I think the Administrator's termination
of the payments because of immoral conduct—which is not a statutory ground
of forfeiture—is not insulated from judicial review by the finality provision
of 38 U.S.C. § 211(a). The distinction is a close one, but I think it is valid; the
finality statute should be liberally construed in favor of the appellant. I can-
not believe Congress intended that provision to prevent review of the Admin-
istrator's unwarranted action in terminating payments of compensation which
he had correctly allowed.
JUNE 1, 1961.
3072/215A
RRH/C&B :vmp
Manager, VBO, Washington, D.C. (3072-00).
General Counsel (02)
XC 20 258 350
MoNDIDO, FOBTTJNATO
1. The Adjudication Officer asks whether the evidence of record as to the
relationship between Catalina Opsar Vda de Mondido, widow of the above-
named veteran, and Silverio Portesa, raises a presumption of their marriage.
This is governed by principles set forth in Op GC 7-61.
2. The veteran died in a prisoner-of-war camp in the Philippines on August 2,
1942. He was survived by a widow, Catalina Opsar Vda de Mondido, who died in
1951, and a minor child, Lucio Mondido, born March 4, 1941. The widow
neglected to file a claim for gratuitous National Service Life Insurance within
seven years after the veteran's death. The claim filed on behalf of the minor
child after the widow's death may be allowed only if it be established that the
widow remarried prior to the expiration of the seven-year period mentioned
above. See Paragraph 21. lOd, VA Manual M8-0.
3. The evidence adduced by a field examination conducted in November 1960,
establishes that the veteran's widow commenced living with a widower, Silverio
Portesa, sometime in 1945. The exact date is not clearly established by anything
contained in the XC-folder. In the absence of more exact evidence, the relation-
ship may be assumed to have commenced May 1, 1945, which is about nine
months before February 18, 1946, the date their first child was born. Silverio
has disappeared and no record of his ceremonial marriage to the widow has
heen found.
4. No evidence of legal impediment to a valid marriage between the veteran's
widow and Silverio has been adduced. The veteran's child, Lucio Mondido, age
20, asserted, among other things in his deposition that he knew his mother was
legally married to Silverio because she told him so, and that she also told him
she was married "during the war." He also asserted that five children were born
of his mother's marriage to Silverio; that all the children died; that Silverio
supported the family; that Silverio performed the duties of a husband; that the
residents in the barrio regarded Silverio and his mother as "bana bana", mean-
ing "just living together as husband and wife." He also asserted "but my mother
and Silverio did not live openly and publicly. They kept their relationship a
secret—they tried to hide their relationship from the public."
5. Of course, it must be borne in mind that Lucio Alondido was testifying at
the age of 19 in regard to matters that transpired before his tenth birthday and
hefore his mother's death in 1951. The field examiner considered him sincere
but expressed a doubt in the field examination report whether Lucio "possessed
complete and sufficient knowledge of matters that occurred while he was still a
child." The field examiner also reported that the three other deponents testi-
fied in a calm straightforward manner and that he believed them to be truthful.
Each of these three deponents was a neighbor of the widow during the years
1890 JUDICIAL. REVIEW OF VETERANS' CLAIMS

she cohabited with Silverio and all of the cohabitants' neighbors were reported
by the field examiner to live "far apart and separated by hills." Several neigh-
bors who did not give depositions are reported to have given information to the
field examiner confirming the testimony given by the deponents. This informal
information was to the effect, among other things, that the relationship between
the widow and Silverio began shortly after the "liberation" and ended at the
time of the widow's death. It was also indicated that some of the informants
believed the widow and Silverio were not "legally" married although they lived
together under the same roof as husband and wife "just like any other married
couple."
6. The depositions are to the same general effect. Thomas Alcala asserted,
among other things, that "Catalina is not legally married to Silverio." He gave
no reason for this assertion, and added, "but their relationship could be likened
to a legally married couple." He then explained that "during the relationship,
Silverio was the head of the family and he supported Catalina. Catalina per-
formed her duties as his wife by keeping house for Silverio and the children.
The relationship could be compared to my relationship with my wife—and was
no different." He also stated, "in this place, Silverio and Catalina became
known as husband and wife and they are treated and respected as such. Al-
though they have not represented themselves to residents here formally, yet by
their behavior and actions they did introduce to us that they were really husband
and wife."
7. Another neighbor, Juana Patimio, whose husband is a first cousin of the
veteran, asserted "I know that Catalina and Silvario are not legally married.
They just live together in the same house just like husband and wife. They lived
openly and publicly and did not attempt to hide their relationship. She stated
"residents of this barrio treated and respected them as a married couple." This
deponent also gave no facts in support of her alleged knowledge that there was
no legal marriage. She merely expressed an opinion, and this opinion is in
direct conflict with the inferences to be derived from the balance of her testi-
mony—it is negative by its entire setting—for both this deponent and another
neighbor, Emerenciana Jadraqua Vda Escura, testified to the effect that the
widow and Silvario cohabited as husband and wife; that their relationship
started shortly after the war; that they were known and reputed as a married
couple; that they did not formally introduce themselves as husband and wife;
that they were considered by their behavior and actions to be husband and wife ;
and that they did not have to tell their neighbors they were husband and wife—
the neighbors knew that from their actions. The field examination report fur-
ther shows that all except one of the five children born of the relationship between
the widow and Silvario are listed either in baptismal or birth records as their
legitimate children. It is to be observed that the single entry showing one of
the children as illegitimate was made in the local Civil Register with respect to
a child born to Silverio and the widow on January 18, 1950, and that the pre-
sumption of accuracy which might otherwise be indulged in as to all aspects of
this entry may not be properly accorded due to redundant errors. For example,
the child's father's name is misspelled, an entry pertaining to the child was made
on the wrong line and crossed out, and the information required by the form was
not inserted in this place, and both the child's mother and father were shown as
"widower." Consequently, since the entry showing the child as illegitimate is
in conflict with entries made in other records with respect to legitimacy of the
couple's other children born both before and after this entry, it is reasonable to
assume that the entry showing the child as illegitimate is just one more in a
series of errors in the public record.
8. Op GC 7-61 stated in part that a properly established presumption of mar-
riage exists only when there is proof of each one of these facts :
(1) A cohabitation as man and wife.
(2) A holding out by the two persons to the general community in which
they reside that they are husband and wife (which is generally embraced
in the requisite cohabitation).
(3) A general reputation in such community that they are married to each
other.
9. The meaning of the terms "cohabitation" and "holding out" and "general
reputation" when used in respect to facts establishing a presumption of marriage
have been established by a long line of judicial precedents, and the terms as used
in Op GC 7-61 should be given the same generally accepted meaning in all of
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1891

the quasi-judicial determinations by the VA involving the existence or nonexist-

ence of a presumption of marriage. The term "cohabitation" means something
more than normal intercourse. Taylor v. Taylor, 10 Colo. App. 303, 50 F. 1949.
I t is defined in Bouvier's Law Dictionary as "to live together in the same house
claiming to be married." The term has been judicially defined to mean a public
assumption of the marital relationship by a man and woman by dwelling to-
gether and holding themselves out to the public to be man and wife. Ridley v.
Compton, 61 So. 2d 341, 215 Miss. 532. Cohabitation is a manifestation that the
cohabitants have contracted marriage. I t is a holding forth to the world by
daily life, conduct, demeanor and habit that the man and woman who live to-
gether have agreed to stand to each other in the mutual relationship of husband
and wife. People v. Spencer, 199 Mich. 395, 165 NW 921, and Robinson v. Rob-
inson, 1S8 111. 371, 58 NE 906. See also Qraham v. Graham, 130 Colo. 225, 274 F .
2d 605, LeBlanc v. Yaion, 99 Fla. 328,126 So. 789, 790; 35 Am Jur Marriage Sec-
tions 220 and 221. The opinion of the Supreme Court of Utah in United States
v. Snow, 4 Utah 313, 9 P. 697, 705, concisely explains the term "holding out" in
its opinion, reading in p a r t :
"He held her out to the world as a wife. By that is meant and by that is
understood such language and conduct leaves the world to believe that the parties
were living and associating as husband and wife. That is the meaning of the
term 'holding out'."
10. Cohabitation of the nature which includes the requisite "holding out" as
man and wife gives rise in the normal course of events to evidence of the second
fact which must be established in order to raise a presumption of marriage—
a general reputation of marriage. Both must be established by a preponder-
ence of evidence before a presumption of marriage may be deemed to have arisen.
This means evidence which is of greater weight or more convincing than the
evidence which is adduced in opposition to it. Of course, when there has been
unequivocal conduct and utterances inconsistent with anything but marriage,
repute of marriage naturally arises, and, generally, no difficulty is encountered
in evaluating the evidence. The difficult cases arise when (as in the instant
case) it is necessary to weigh and resolve a conflict in the evidence or resolve
questions with respect to credibility of the witnesses. In all such cases, deter-
minations whether cohabitation and reputation are established so as to give rise
to a presumption of marriage requires the exercise of keen analysis and judg-
ment on the part of a person with legal training and experience in evidentiary
evaluations. See Op Sol 8-51. It is obviously impossible to state all the con-
siderations which must be taken into account since they vary with the facts
and circumstances in each case. There are, however, certain basic require-
ments to be met in every case before a presumption of marriage may be deemed
to have arisen.
11. First, there must be proof of both cohabitation and reputation in order
to establish a presumption of marriage for purposes within the purview of Op
OC 7-61, and, as heretofore observed, proof must be made by a preponderence
of clear and convincing evidence. While there are some reported judicial prece-
dents which indicate that a presumption of marriage may arise from cohabita-
tion alone, the majority of well-reasoned cases require proof of both cohabita-
tion and general reputation to establish a presumption of marriage where direct
evidence of marriage has not or cannot be adduced; and the VA would not be
justified in adhering to any less stringent requirement. In Arnold v. Chese-
brough, 58 F 833, decided by the United States Circuit Court of Appeals, Second
Circuit, in 1893, the governing principles were set forth as follows:
"* * " The question which this appeal requires us to decide is whether Mrs.
Arnold's father and mother were husband and wife. The decision depends upon
the effect of direct evidence relative to a ceremonial marriage between the par-
ents, and of indirect or presumptive evidence indicating the matrimonial rela-
tion, arising from their cohabitation and repute, conduct and declarations. In
such actions the burden of proof is upon the party who asserts the marriage;
but the law presumes, from considerations of decency and public well-being,
that every competent couple, who ostensibly cohabit as husband and wife,
demeaning themselves toward each other as such, and were received into so-
ciety, and treated by friends and relatives as being entitled to that status, have
been legally married. This presumption is indulged with special cogency when
the legitimacy of the offspring is the issue for judgment. A perfect marriage
may be constituted by the consent of the parties to live together as husband
1892 JUDICIAL REVIEW OF VETERANS' CLAIMS

and wife, as well as by a ceremonial marriage, and either form of marriage

inay be proved by any circumstances justifying the deduction as well as by direct
evidence. But, in the absence of direct proof, marriage cannot be proved by
cohabitation alone, however long maintained. The evidence must support a
matrimonial cohabitation, as distinguished from a meretricious one. Com. v.
Stump, 53 Pa. St. 132; Rose v. Clark, 8 Paige, 574; Cunningham v. Cunningham,
2 Dow, 482. The facts that parties have publicly acknowledged each other as
husband and wife, have assumed the marriage rights, duties, and obligations;
have been generally reputed in the place of their residence to be husband and
wife, are relevant to prove a contract of marriage between them. Both co-
habitation and reputation are necessary to establish a presumption of marriage,
where there is no proof of actual marriage. A divided repute, however, is of
no efficacy. It must be a general and consistent one, to be of value. We have
to apply these rules of evidence to a voluminous mass of testimony, much of
which is untrustworthy, eliminating from consideration much in the record
which is incompetent.1 We cannot undertake to recapitulate the testimony, or
analyze it in detail, as it would serve no useful purpose to do so * * *."
See also 1 Jones on Evidence 166, Section 95; LRA 1915E 42; Am. Jur. Mar-
riage, Section 223 ; 55 CJS Marriage, Sec. 43b.
12. The meaning of a "general" reputation of marriage is explained in an
early case, Taylor v. Taylor, 10 Colo. App. 303, 50 P 1049, reading in part as
follows:
"By 'general reputation or repute' is meant the understanding among the
neighbors and acquaintances with whom the parties associate in their daily
life that they are living together as husband and wife, and not in meretricious
intercourse. 'In its application to the fact of marriage, it is more than mere
hearsay. It involves, and is made up of, social conduct and recognition, giving
character to an admitted and unconcealed cohabitation.' Badger v. Badger,
88 N.Y. 556. It is necessary that there be evidence both of cohabitation and
reputation before such a marriage can be presumed. Proof of one alone is not
sufficient to sustain the presumption. Com. v. Stump, 53 Pa. St. 132. As was
said in the Yardley's Estate case, above cited: 'The Scotch expression conveys
the true idea, perhaps better than our own—the "habit and repute" of marriage.
Thus, when we see a man and woman constantly living together, where one
is dwelling, there the other constantly dwells with him, we obtain the first
idea or first step in the presumption of marriage, and when we add to this
that the parties so constantly living together are reputed to be man and wife,
and so taken and received by all who know them both, we take the second
thought or second step in the presumption of the fact of a marriage. Marriage
is the cause; these follow as the effect. When the full thought contained in
these words, "cohabitation" and "reputation of marriage," is embraced, we
discover that an inconstant habitation and a divided reputation of marriage
carry with them no full belief of an antecedent marriage as the cause. The
irregularity in these elements of evidence is at once a reason to think there is
irregularity in the life itself the parties lead, unless attended by independent
facts which aid in the proof of a marriage. Without concomitant facts to
prove marriage, such an irregular cohabitation and partial reputation of mar-
riage avail nothing in the proof of marriage'."
13. General reputation is a fact which is established by proof of the collec-
tive opinion in the community. See Jack-son v. Jackson, 82 Md. 17, 33 Atl. 317,
320, reading in part as follows:
"A reputation, to be a provable reputation at all, must be a general reputation.
It may be either one of two opposites; for instance, either good or bad. It
cannot be intermediate—that is, partly one, and partly the other, for that would
not be general, and there would then be no general reputation either way.
If it is generally good or generally bad, or, as applicable to the case at bar, if a
man and woman are generally reputed to be married, or if the converse is gen-
erally asserted, a general reputation, one way or the other, exists: and of a
general reputation, and none other, the law allows evidence to be given. But.
if it be not general, then obviously, it does not exist as a fact, and evidence
cannot be received to show a partial, limited, or qualified repute. When the
courts employ the term 'divided reputation', it is not meant that an individual
can have such a thing as two opposite general reputations at the same time.
A condition of that sort is an impossibility."
1
This, of course. Is an old familiar problem In connection with quasi-judicial determina-
tions made by the VA.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1893

See also Schwingle v. Keifer, Court of Civil Appeals, Texas, 135 SW 194, 197
and LRA 1915E 39.
14. The effect of a conflict in testimony regarding reputation was explained
by the Supreme Court of Oklahoma in In Re Giordano's Estate, 174 F. 2d 236,
249, reading in part as follows:
"Contestant concedes that in addition to the testimony of her witnesses above
described there were three others whose testimony tended to show that the
couple were reputed to have been husband and wife. Thus, on the basis of con-
testant's version of the testimony, it will be seen that the present case presents
an instance not of 'divided' or 'singular' reputation but merely of a conflict in
the evidence as to general reputation. The distinction noted is dealt with
in the note to Qrigsby v. Reib, 105 Tex. 597, 153 SW 1124, Ann. Cas. 1935C, 1011,
appearing at pages 8 to 56, inclusive, of LRA 1915E, where at page 40, it is said :
" 'This difference, however, may be traceable to an indiscriminate use of the
term "divided repute" which fails to distinguish between a conflict of testi-
mony as to the uniformity of repute and uncontroverted evidence showing a
conflict of repute. If, undeniably, it appears that one part of the community
was of one opinion and the remainder, of the other, then there is a divided
repute in a true sense, and it would seem to have no probative force. But
where there is a conflict of testimony as to the general repute in the com-
munity, that is, if some witnesses testify that the parties were generally re-
puted to be married, and others that they were not, the question is one of
credibility merely, and is for the jury, for in such circumstances there is a
general repute for or against marriage, accordingly as one set of witnesses or
the other is believed.'
"The view above expressed is supported by the majority of well-reasoned au-
thority and we think it is the only correct one that can be taken of the matter
in question."
15. It is also to be observed that where a man and woman are openly living
together in the same house as husband and wife, absence of discussion of their
marital status would in itself, indicate an acceptance of them in the community
as husband and wife. See Shclton v. Belknap, 155 Tex. 37, 282 SW 2d 682,
citing Wigmore on Evidence, 3d ed., Section 1603, to the effect that the rule
recognizing general reputation as evidence of marriage is analogous to the rule
laid clown for reputation as to moral character, and citing Section 1614 of the
same text to the effect that the absence of utterances unfavorable to a person
is sufficient for a predication that the general opinion of him is favorable.
16. It is fundamental that reputation is a matter of collective understanding
and not of individual opinions. It has been held in keeping with this principle,
that an unsubstantiated opinion that cohabitants were not legally married is
inadmissible in litigation involving whether a presumption of marriage arose.
See Jackson v. Jackson, 80 Md 176, 30 Acl 752, 756. Such an unsubstantiated
opinion has no probative value. The United States Circuit Court of Appeals,
8th Circuit, pointed out in United Slates v. Hill, 62 F 2d 1022, 1026, that:
"It is safe to say than an opinion rises no higher than the evidence and logic
upon which it is predicated."
See also Gaines v. City of Nero Orleans, 73 US 642, IS L ed 950; Gassell v.
Commissioner of Internal Revenue, 41 F 2d 20; United. States v. 162.93 Acres
of Land Situate in Toxcn of Hunthujton, Suffolk County, N.Y.. 154 F Supp 258.
Aff., United States v. Fox, 257 F 2d 265; 12 CJS Evidence Sec. 471 L.
17. No useful purpose will be served by recapitulation and step by step analysis
of the evidence bearing upon the widow's and Silverio's cohabitation as man
and wife and their general reputation of marriage in the instant case. It is
sufficient to point out that the preponderance of the evidence shows a cohabita-
tion between the widow and Silverio as man and wife for over 5 years, and testi-
mony of all the neighbors who were contacted by the field examiner confirmed
that they had a general reputation as husband and wife in their community. No
probative value may be given to Lucie's testimony in regard to his mother's
alleged concealment of her marriage because of the doubtful reliability of his
recollection of events occurring over a decade ago when he was a young child.
Moreover, the preponderance of the evidence establishes a public "holding out"
as husband and wife. The only remaining ostensible conflict in the testimony
arises by reason of the fact that several of the neighbors whose testimony
clearly shows cohabitation and general reputation of marriage also expressed
individual opinions that the cohabitants were not "legally" married. Certainly
1894 JUDICIAL REVIEW OF VETERANS' CLAIMS

this would have provided a basis for further inquiry on the part of the field
examiner to ascertain exactly what some of the neighbors meant by the term
"legally" married, and to ascertain whether they had any factual basis for their
opinions. However, it does not appear that further field examination to develop
this phase of the evidence would be warranted at this late date.
18. The opinions that the widow and Silverio were not "legally" married
given nearly 10 years after the widow's death are, standing alone, sheer con-
jecture on the part of the neighbors. It may be presumed that the deponents
would have related any facts in support of their opinions that the widow was
not legally married to Silverio if they had known the legal requirements for a
valid marriage, and had possessed any recollection of facts bearing on the co-
habitants' assumed noncompliance therewith, since all the questions asked of
them were obviously intended to bring out all material facts concerning the
relationship and status of the widow and Silverio. The requirement that the VA
disregard, as irrelevant, these unsubstantiated opinions of the deponents does
not mean, of course, that the balance of their depositions is entitled to no weight
in evaluation of all the evidence adduced in regard to cohabitation and reputa-
tion. The deponent's testimony must be considered as a whole. See Kapla v.
Lehti, 225 Minn. 325. 30 NW 2d 685. See also United States v. Commissionims
Official, etc., 58 F Supp. 933, 948, wherein the District Court of the United
States for the District of Nebraska pointed out in regard to the effect of cer-
tain answers contained in depositions that:
"The Court appraises the effect of any answer in its proper content; and
thus declines to attribute to a manifestly inept and inadvertent answer a signifi-
cance that is conclusively negatived by its entire setting."
19. The testimony of all three of the deponents supports a conclusion that
the widow and Silverie cohibited as husband and wife and had a general
reputation throughout the community as a married couple, and, even though
two of them expressed unsubstantiated opinions that the cohabitants were
not legally married, the doubt which might otherwise be raised by these opinions
(even though they are irrelevant) is dissipated by reason of the fact that the
same deponents also testified that they, as well as others in the community,
treated and "respected" the cohabitants as married persons. There is no show-
ing in this connection that under the prevailing customs and mores of the com-
munity, such treatment and respect would have been accorded by the deponents
and others to a man and woman known to be living in an illicit relationship. On
the contrary, the Supreme Court of the Philippines pointed out in Adams v.
Ohaong Sang Gee, 43 Phil 43, 56, that it will be presumed that a man and woman
deporting themselves as husband and wife have entered into a lawful contract
of marriage. The Supreme Court pointed out that this was based upon what
it described as "a common order of society" in the Philippines.
20. In conclusion, it is the opinion of this office that the preponderance of
the evidence of record in the instant case establishes that the widow and Silverie
cohabited as husband and wife; that they had a general reputation as husband
and wife in their community; that these facts give rise to a presumption of their
marriage which may be relied upon to establish the fact of marriage for gra-
tuitous National Service Life Insurance purposes in the absence of any evidence
rebutting such presumption; and that in the absence of more exact evidence
with respect to the date of their marriage, the contract may be deemed to have
been entered into on or about May 1, 1945, 9 months before the date their
first child was born.
FEED B. RHODES, Jr.

GENERAL COUNSEL'S OPINION, VETERANS' ADMINISTRATION—OP. G. C. 7-51

MARCH 20, 1961

XC 6 399 831
Chief Benefits Director,
General Counsel,
Legal Principles Governing Termination of Gratuitous Benefits to Widows upon
Proof of Ostensible Remarriage.
1. This refers to the request made by the Manager, VBO, for a determination
whether the circumstantial evidence of marriage in the instant case should be
deemed to establish that the widow of Eupeniano V. Bautista, XC 6 399 831, has
married and is therefore no longer entitled to dependency and indemnity com-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1895

pensation benefits as "unremarried" widow. The exact legal basis upon which
we proceed in this type of case is often misunderstood by claimants, their at-
torneys or representatives, and even some of the courts. Consequently, we are
taking this opportunity to restate the governing legal principles.
2. The questions for consideration are :
1. May payment of gratuitous benefits which are awarded under laws
administered by the Veterans' Administration to a widow in monthly in-
stallments, and which are subject to a statutory limitation requiring ter-
mination in the event of her remarriage, be discontinued and not merely
held in suspense when the claimant asserts to the Veterans' Administration
that she has not remarried, but the preponderance of credible evidence
before the Veterans' Administration and frequently adduced by it establishes
that she had cohabitated with a man as his wife in a jurisdiction which
does not recognize common-law marriages, that they have generally repre-
sented themselves to persons in their community as husband and wife,
and that they enjoy a general reputation as married persons in the com-
munity in which they reside?
2. Would the answer be the same, if the cohabitation had been in a
jurisdiction which recognizes common-law marriages?
3. The circumstances here related are typical of many other cases. The
veteran entered military service of the United States in the Philippines on
October 5, 1943 and died in service on February 11, 1945. When dependency
and indemnity compensation was awarded his widow, effective January 1, 1957,
in lieu of death compensation theretofore paid to her, she was duly notified that
payments would be discontinued in the event of her remarriage. She was
specifieially informed, in this connection, that she should not endorse any
check made payable to her as unremarried widow after a remarriage, but should
return such checks with a statement showing the date of her remarriage in
order that payments could be adjusted up to the date of the marriage.
4. The widow accepted all the checks mailed to her by the Veterans' Admin-
istration as unremarried widow, and, in doing so, implicitly made continuing rep-
resentations to the Veterans' Administration each month that she had not remar-
ried. Nevertheless, it was found necessary to suspend the award of dependency
and indemnity compensation as a consequence of a field examination completed in
August 1960, which showed the widow's representation to the Veterans' Admin-
istration were in direct conflict with representations she was making in her own
community in regard to her marital status. The evidence adduced by the Vet-
erans' Administration showed, among other things, that she was living in a
relationship that was ostensibly marital with a man in her village and had
borne three children as the result of such relationship. Although she denied
under oath in a deposition given the Veterans' Administration field examiner
that she had either remarried or lived with "any man" in a relationship of
husband and wife since the death of the veteran and specifically denied that she
had lived with a man named Geminiano, or represented to others that he was
her husband, she admitted that Geminiano was the father of her three children
Juanita, Fernando and Leonora, whom she bore after the veteran died. She
alleged, however, that he was known in the community merely as her "lover."
The field examiner was unable to find record evidence of a ceremonial marriage
between the widow and Geminiano after search of local Civil Registers in several
of the Philippine municipalities he discovered the widow had visited. However,
he did find that the local Register for the municipality of her last place of
residence showed that her children, Leonora, born in 1958, Fernando, born in
1954, and Juanita, born in 1952, had been reported by Geminiano Celedonia as
This legitimate children.
5. Geminiano evaded the field examiner and the testimony in depositions
obtained by the field examiner from three neighbors of the widow who had been
well acquainted with her for many years contradicted many of the widow's
sworn averments. Although none of the neighbors swore that to his own
knowledge the claimant had been ceremonially married to Geminiano, each
swore, among other things, that the claimant and Geminiano lived together in
the relationship of husband and wife; that the three aforementioned children
were born of the relationship while they lived in the community ; that the widow
and Germiniano represented to persons in the community that they were hus-
band and wife; and that they are generally recognized in such community to be
husband and wife. Depositions obtained from certain other persons who did not
reside in the community were of little or no probative value.
1896 JUDICIAL REVIEW OF VETERANS' CLAIMS

6. Neither the statutory bar to payments after remarriage of a widow nor the
circumstances raising the question in the instant case whether the widow has
entered into a remarriage within the purview of the statute are unique in the
history of the administration of pension benefits. Federal statutes authorizing
pension or similar annuities gratuitously to widows of persons who served in
the Armed Forces of the United States have, since the early days of the Republic,
with practically no exception, restricted payments to widows to the period
'•while unremarried." See, for example, 16 Stat. 411, 24 Stat. 371, 27 Stat. 281,
32 Stat. 399, 2 Op. Atty. Gen. 95, and 2 Op. Atty. Gen. 548. The logical reason
for this legislative policy was summed up by Judge Nott in an early decision of
the Court of Claims, Poucher v. United States, 1 Ct. Cls. 207, when he explained
that under the theory of military pensions the Government maintains those who
have been deprived of the support which a father, a husband, or a son might
have provided if he had not devoted himself to the military service of his coun-
try but—in a case of a remarried widow—the Government owes no support or
maintenance to the wife of a private citizen.
7. The continuation of this policy to the present time is reflected throughout
the laws administered by the Veterans Administration providing gratuitous bene-
fits to widows of veterans. It is effectuated for the purpose of most such bene-
fits—including dependency and indemnity compensation—by the definition of the
term widow as set forth in subsection 3 of section 101 of Title 38, United States
Code, reading as follows:
"The term 'widow' means (except for purposes of chapter 19 of this title) a
woman who was the wife of a veteran at the time of his death, and who lived
with him continuously from the date of marriage to the date of his death (except
where there was a separation which was due to the misconduct of, or procured
by, the veteran without the fault of the wife) and who has not remarried (unless
the purported remarriage is void)."
While the insurance provisions of chapter 19 of Title 38, United States Code,
are expressly excluded from the field of operation of this definition, it is to be
noted that awards of gratuitous National Service Life Insurance are subject to
a similar statutory restriction permitting payments to widows only "while unre-
married." This is true both in regard to gratuitous insurance authorized under
Section 602 of the National Service Life Insurance Act of 1940, as amended
(which was saved from repeal by Section 788 of Title 38, United States Code),
and gratuitous insurance authorized under subsection (b) of Section 722 of
Title 38, United States Code.
8. The existence of the aforementioned restrictions compels an exercise of
the highest degree of diligence on the part of the Government, and complete
honesty and good faith on the part of widows in order that the intent and pur-
pose of the laws requiring termination of gratuitous benefits upon widows'
remarriages be fulfilled. Most remarried widows voluntarily inform the Gov-
ernment of their remarriages. However, the experience of the Federal Govern-
ment, of more than a century, in administering pension laws has demonstrated
that some widows have gone to great lengths to conceal unquestionably valid
remarriages and thus defraud the United States. It has also been found that
some widows have chosen to live publicly in an illict relationship, and even to
bear illegitimate children as a result thereof, rather than marry and automati-
cally lose their monthly cash gratuities.
9. The openly immoral conduct of widows, however undesirable socially, has
presented no particular administrative problem under the legislation as now
worded since it has no direct bearing on their legal status as unremarried wid-
ows. It may be stated in brief reference to former legislation that an Act of
August 7, 1882, 22 Stat. 345, attempted, for a time, to censor immoral conduct of
widows by requiring termination of pension benefits upon proof of open and no-
torious "adulterous" cohabitation. Later, subsection 5 of Section 22 of the War
Risk Insurance Act, Public No. 90, 65th Congress, approved October 6, 1917, re-
quired termination of compensation allowances and insurance awarded under
that act upon proof of a widow's open and notorious "illicit" cohabitation. How-
ever, both statutes were difficult to administer and have long since been repealed.
A widow's illicit relationship with a man after her husband's death no longer
has any effect upon her claim for gratuitous benefits under any law administered
by the Veterans Administration. The sole question which can arise from her
relationship is whether she has remarried. This is, of course, a mixed question
 JUDICIAL REVIEW OP VETERANS' CLAIMS 1897

of fact and low to be determined in the light of all the evidence, the burden of
proof being always upon the widow-claimant to establish her claim by cogent,
credible and convincing evidence of her unremarried status.
10. In the normal course of events, the same quantum and quality of evidence
necessary to prove a valid marriage to a veteran for the purpose of establish-
ing a right to benefits as his widow would suffice to establish the widow's remar-
riage after his death for the purpose of terminating such benefits. In the ex-
plicable absence of the best evidence—primary evidence such as a public record
of marriage—secondary evidence of the same nature that is generally admissible
in civil actions in this country is accepted by the Veterans Administration as proof
of a widow's marriage for either purpose. This is in keeping with well-estab-
lished principles of law which have been followed by the Veterans Administra-
tion and its predecessors in the administration of pension laws for over a cen-
tury. See, for example, 4 Op Atty Gen 496; Reg. 205(d), Regulations Governing
the Bureau of Pensions, 1928; 61 Sol 115 and 37 Sol 416 re VA Reg 1050, now
1205, 38 CFR 3.205; Op Sol 211-52; and VA Reg. 1204, 38 CFR 3.204.
11. It is often extremely difficult to determine whether a widow's cohabitation
with a man which is ostensibly marital in nature is actually illicit, or is based
upon a valid contract of marriage. This difliculty has been compounded in many
instances by reason of the fact that it is to the pecuniary advantage of widows
to fraudulently conceal a remarriage from the Government, and, when the marital
relationship is finally discovered, deny a valid remarriage has occurred. Such
a denial is often followed by withholding of all evidence which would enable
the Government to locate a public record of the ceremony, and some widows
have even fabricated evidence in their favor and resorted to perjured depositions
and affidavits in attempts to defraud the Government. When a widow in-
tentionally refrains from reporting her marriage, the initial information in
regard to her marital status often reaches the Government through public spirited
citizens or irate relatives or acquaintances. Some make their reports because
of the fact that a widow's continued acceptance of Government checks drawn in
her favor as "unremarried" widow while she represents to everyone in the
community that she is married obviously gives rise to a local inference that the
United States Government is being defrauded. Many marriages which widows
failed to report have also been detected since 1912 by reason of a statute enacted
that year which implicitly recognizes the fact that an ostensible marriage of a
widow as evidenced by her conduct and reputation in the community is prima
facie proof of her remarriage. This law, as carried forward in Section 3020 of
Title 38, United States Code, prohibits postmasters, delivery clerks, letter carriers,
and all other postal employees from delivery of any mail containing a check
for benefits administered by the Veterans Administration, if it is addressed to
a veteran's widow, as such, and the employee has reason to believe she has
remarried.
12. Early pension decisions recognized that proof of an ostensible remarriage
based upon evidence of cohabitation as husband and wife, a general reputation
in the community as husband and wife, and representations of a widow and
a man with whom she lived that they were married raised a presumption of
marriage under well-established rules of evidence. However, they went fur-
ther and held that a widow would be "estopped" by her conduct to deny
marriage in such a case, even though the rules of evidence forming the basis
for a presumption of marriage have always permitted a rebuttal of the pre-
sumption. See 14 PD 469, 472. One of the earliest rulings adopting the "estop-
pel" theory was a ruling of the Secretary of Interior on June 15, 1S7S, 5 PD (o.s)
489, reading in part as follows:
"In cases where pensions are claimed, the right to which Is based upon a mar-
riage contract the burden of proof is on the party alleging it, to show not only
that it existed, but. also, that it was a valid marriage, and nothing short of the
most satisfactory proof should be considered sufficient to establish such a contract.
"The same rule should be applied where, as in the case now under consider-
ation, it is alleged that no marriage ever existed, although it may require that
the applicant shall prove a negative.
"In cases where re-marriage is alleged, although not conclusively shown to be
valid a different rule should be applied. If the widow of a former soldier to
whom a pension has been granted, lives and cohabits with some man as his wife,
calls him her husband, and by him is called wife, although no marriage contract
in fact exists, and it is apparent that the relation has been assumed for the
purpose of still receiving her pension, I am of the opinion that the pensioner
S00S2—62 12
1898 JUDICIAL REVIEW OF VETERANS' CLAIMS

should be estopped by her conduct, and by her representations or acknowledge-

ments from claiming or receiving a pension as the widow of the Soldier.
"The objects which the decisions of your Office, and of this Department, have
heretofore sought to accomplish by holding that such relation constitutes mar-
riage, may thus be effected without holding that a marriage exists in violation
of the law—written or unwritten of anv State."
See also 5 PD (o.s.) 329: 5 PD (o.s.) 335: 6 PD (o.s.) 323; 7 PD (o.s.) 374;
8 PD (o.s.) 80; 8 PD (o.s.) 332; 9 PD (o.s.) 443 ; 15 Sol. 236.
13. The line of reasoning followed in these early pension cases was carried
forward for purposes of laws administered by the Veterans Administration by
an opinion of the Solicitor of Veterans Administration in case of XC 1299509, 24
Sol. 439. The claimant in this case was entitled to pension until remarriage.
She denied remarriage and the Veterans Administration had not been able to ob-
tain documentary proof of the ceremonial marriage, but all the other evidence
showed that she cohabited with a man as his wife; was reputed in the community
in which they lived to be his wife; and that they held themselves out to the
general public as husband and wife in a state that did not recognize common-law
marriages. The body of the opinion accorded much weight to the legal presump-
tion of marriage which arises under these circumstances. Nevertheless, in
keeping with what might be termed an administrative rule of stare decisis, the
opinion gave the greatest force and effect to pension decisions going back to
1878, applying principles of "estoppel" in such cases. The opinion concluded :
"It has already been shown that insofar as regards her reputation in the com-
munity she is the wife of the man with whom she is residing. It is only when
the check which represents the benefit payable to her as the unremarried widow
of the veteran, is delivered that she reverts, for the moment, to her station and
reputation, and only for the purpose of receipt of that check, as the surviving un-
remarried widow of the veteran.
"In my judgment the Veterans Administration, in cases of this character, is
justified in resorting to the legal principles set forth above, as applicable to this
situation. She, living with, and bearing children by, "X" claiming that she is
his wife insofar as the community is concerned, should be estopped to set up a
denial of marriage to "X" for the sole purpose of inducing a continuation of
pension payments which are in order so long as she is the unremarried loidcno of
her soldier husband. The procedure thus recommended is predicated upon prin-
ciples recognized and adopted by the Bureau of Pensions as early as 1878, and
enforced by that Bureau in pension awards."
14. This long-standing construction and application of statutory remarriage
limitations was acquiesced in by Congress both before and after the XC 1, 299,
509 opinion was approved by the Administrator in 1936, and the silence of Con-
gress in the face of a long-continued administrative practice involving the con-
struction of a statute may be considered as the equivalent of its consent to con-
tinue the practice. See United. States v. Jackson, 280 US 183, 74 L ed 361. For
these reasons, the consistent course of administrative practice must be accorded
weight in any reconsideration of such practice. See United States v. Menning,
344 US 66, 97 L ed 101; United States v. Bergh, 1956, 352 US 40, 47, 1 L ed 2d
102; Adams v. United States, 1943, 319 US 312, 314-315. 87 L ed 1421; United
States v. Citizens Loan & Trust Co., 1942, 316 US 209, 214, 86 L ed 1387; Inland
Waterways Corp. v. Young, 1940, 309 US 517, 84 L ed 901; United States v. Ameri-
can Trucking Associations, Inc., 1940, 310 US 534, 549, 84 I, ed 1345; United
States v. Madigan, 1937, 300 US 500, 506, 81 L ed 767; 'Norwegian, Nitrogen Prod-
ucts Co. v. United States, 1933, 288 US 294, 315, 77 L ed 796; Edwards' Lessee v.
Daroy, 1827,12 Wheat. 207, 210, 25 US 207,210, 6 L ed 603.
15. Although it cannot, properly be concluded that the ultimate conclusions
reached and adjudications made in reliance upon principles of estoppel were
erroneous, it has long been recognized that the oft-criticized opinion XC 1,299,509
would have rested upon more solid legal grounds had it placed sole reliance upon
well-established principles in regard to the presumption of marriage which are
applicable in such cases, instead of the principles of estoppel. Consequently,
commencing in 1946, there was a gradual departure from the "estoppel" rule,
both in theory and in practice. This was reflected in an opinion of the Solicitor
of the Veterans Administration dated March 8, 1950, Op Sol 116-50, wherein
it was pointed out that the opinion XC 1,299,509 did not establish a rule of
morality, and that there could be no "estoppel" or oar to denial of remarriage
as the result of illicit conduct.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1899

16. In Op Sol 116-50, and all subsequent opinions of the Solicitor and General
Counsels of the Veterans Administration, it has been considered that evidence
of cohabitation and reputation in the community as husband and wife give rise
to a presumption of remarriage and that the widow is then required to assume
the burden of adducing convincing credible evidence rebutting such presumption
as a prerequisite to allowance of her claim for continuation of benefits. These
principles are set forth in Op Sol G04-50, reading in part as follows :
"5. A claimant's status as an unremarried widow does not cease because of
an illicit cohabitation by her, or because she has given birth to children who
were conceived after the veteran's death. On the other hand, the law presumes
morality not immorality, marriage not concubinage, and therefore, a widow must
be presumed to have remarried if she is living in an obstensibly marital relation-
ship. The same presumption comes into being when a veteran's widow gives
birth to children who were conceived after the veteran's death.
"6. The presumption of remarriage arising from either of the stated con-
siderations is not conclusive, but it does place upon any claimant, whose entitle-
ment is dependent upon the maintenance of an unremarried status, a very heavy
evidentiary burden. The burden is not lessened by prior recognition of the
claimant as unremarried. Evidence giving rise to a presumption of remarriage
overcomes the effect, prospectively, of any determination, made prior to its
receipt, that a claimant was unremarried and necessitates another determina-
tion, in the light of the entire record, as to the current sufficiency of such claim-
ant's proofs as to marital status. Moreover, there must be taken into considera-
tion in the evaluation of evidence the facts that (1) a claimant to gratuitous
insurance or pension has a pecuniary interest in withholding evidence of re-
marriage, and (2) documentary evidence of such a change of marital status
is difficult to obtain without the assistance of the very person who would be
adversely affected by it. See the discussion in Op Sol 513-50, where it was said,
inter alia:
" 'There is justification for a requirement by the VA of strict proof in support
of a claim in a case in which the attendant circumstances suggest doubt as to
the validity of the claim. An especially strict rule is justified where the doubt
suggested by the circumstances pertains to a question of marital status because
information that will lead to evidence to prove a marital status or to disprove
an allegation of marital status is peculiarly within the possession of the parties
thereto, or possibly only one of them. It is, as a practicable matter, frequently
difficult and sometimes impossible for others to obtain such information'."
See also Op Sol 322-51 and 228-52.
17. The principles now relied upon in opinions of this office are in keeping with
the thought expressed by the United States Circuit Court of Appeals for the
Eighth Circuit in Rittgers v. United States, 154 F 2d 708, that a widow's right
to gratuitous National Service Life Insurance due her while unremarried,
"* * * is dependent upon her legal status, not upon her morals, her worthiness,
nor her social standing."
However, the earlier reliance upon the role of "estoppel" has continued to give
rise to a rather widespread misunderstanding of the present administrative prac-
tice of the Veterans Administration. This is reflected in several federal court
decisions including Samala v. United States, 1S3 F Supp 601 (CA DC). It seems
certain that some of these decisions have been affected by the dicta in Sinlao v.
United States, 271 F 2d 846 (CA DC), criticizing an administrative ruling made
by the Veterans Administration in 1948 involving the rule of "estoppel."
18. The presumption of marriage stemming from evidence of marital cohabi-
tation and repute is never relied upon to prove a marriage unless there is a rea-
sonable explanation for the lack of better proof. Where adequate provision has
been made for the recordation of marriage contracts in a particular jurisdiction,
the best evidence of marriage would be the public record thereof, and proof of
the absence of such a record after diligent search of the records of the only
jurisdictions in which a ceremony would likely have been performed would have
much probative force in establishing that no ceremonial marriage occurred. The
absence of such a record is not, however, conclusive proof of no marriage. See,
in general, Rea v. Fornan, (Ohio), 46 NB 2d 649. Moreover, in the administra-
tive evaluation of evidence by the Veterans Administration, recognition must be
accorded the facts that a contractual agreement of marriage entered into in full
compliance with license and ceremonial marriage requirements of a jurisdiction
not recognizing common-law marriages may just as successfully be concealed
1900 JUDICIAL REVIEW OF VETERANS' CLAIMS

from Veterans Administration field examiners as an oral or written agreement

of parties per verba de praesenti, to enter into a common-law marriage in a juris-
diction recognizing common-law marriages, if an intentional effort has been made
to accomplish such a purpose. For example, a widow desiring the legal, reli-
gious, and moral benefits of a marriage contract, who, at the same time, has no
compunction about defrauding the United States Government, may easily conceal
a public record of her marriage by applying for the license and having the cere-
mony performed at a distant place where she is unknown. She may then return
to her community and deny to the Veterans Administration that she is married
while publicly affirming her marriage to persons within the community. Detec-
tion of a record of the marriage under these circumstances is often impossible
without the cooperation of the person least desiring its discovery—the widow.
Nevertheless, an exhaustive search of the records based on all conceivable pos-
sibilities often leads to success as evidenced by two comparatively recent cases,
COLORINA, Ignacia P., XC 6 383 252, and ABAD, Thomas B., XC 5 532 835.
In the former case, the widow freely admitted, after the Veterans Administra-
tion discovered a record of her marriage, that she had denied remarriage and
concealed the record of her marriage because she was afraid that if it were
known that she had legally remarried she would lose her Veterans Administra-
tion benefits. Such concealments of remarriage are often aided by the condition
of the records, particularly in the Philippine Islands. Some public records in the
provinces are not indexed. Consequently, in the absence of a lead—such as the
date and place of the marriage, which could only be furnished by parties to the
marriage or witnesses known only by the parties—a search of such records is
often impractical. For example, it was found in connection with the field exami-
nation in the instant case that the birth and marriage records of one Local Civil
Registrar in the Philippines were not indexed, and consisted of 29 thick ledger
size register books with consecutive entries in longhand from 1946 to 1950. Later
records were merely filed consecutively in bundles.
19. It seems manifest in the light of all the aforementioned circumstances that
whenever the evidence establishes an ostensible marriage of the widow whose
Vererans Administration benefits must be terminated by operation of law upon
remarriage, the Veterans Administration is justified in giving as much credence
to her public affirmation of marriage as her denial of marriage to the Veterans
Administration. Moreover, upon failure to locate the best evidence of marriage
(a public record thereof), recourse must be made to secondary evidence and the
recognized legal presumptions arising therefrom, to avoid the perpetration of a
fraud upon the Government.
20. Mr. Justice Holmes commented in Greer v. United States, 245 US 559, 62
L ed 469, 472, that:
"* * * A presumption upon a matter of fact, when it is not merely a disguise
for some other principle, means that common experience shows the fact to be so
generally true that courts may notice the truth. * * *"
Of course, a presumption will not be construed in such a manner as to extend
its application beyond the realm of reasonable probability or certitude. Fresh
v. Gilsou, 41 US 327, 10 L ed 982.
21. In the States of the United States which continue to recognize common-
law marriages, it is well established that a presumption of marriage arises from
cohabitation and reputation of a man and woman as husband and wife. In
Taylor v. Taylor, 10 Colo. App 303, 50 P 1049, the Supreme Court of Colorado
stated the applicable principles as follows:
"By the statutes of Colorado, marriage is declared to be a civil contract; and
there is only one essential requirement to its validity, between parties capable of
contracting, viz. the consent of the parties * * * in cases where the contract or
agreement is denied, and cannot be shown, its existence may be proven by, and
presumed from, evidence of cohabitation as husband and wife, and general
repute. 'Cohabitation', as here used, means something more than sexual inter-
course. Bouvier defines 'cohabit' to be 'to live together in the same house, claim-
ing to be married.' Webster defines 'cohabitation' as 'the act or state of dwelling
together, or in the same place with another.' * s * To cohabit is to live or dwell
together, to have the same habitation. * * *"
See also Chance v. Chance, 60 Ga App 889. 5 SE 2d 399; In re Ott's Estate,
195 Misc 344. 91 NYS 2d 616: Pierce v. Pierce, 355 Pa 175, 49 A 2d 346; Galveston
H. & 8. A. Ry. Co. v. Cody, 20 Tex Civ App 520, 50 SW 135: Walker v. Matthews.
3 So 2d 820; Coogler v. Bom, 328 SW 2d 506.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1901

22. The presumption of marriage arising from the above-mentioned circum-

stances is not confined to jurisdictions which recognize common-law marriages.
It is also a generally accepted means of proving marriages in jurisdictions which
require so-called "ceremonial" marriages—including the Republic of the Philip-
pines. However, recourse to this form of secondary evidence is seldom necessary
unless the ceremony was not recorded, the record was lost, or an effort to conceal
the location of a record has been successful. An early case of the Court of
Appeals in Maryland, Richardson v. Smith, 30 Atl 568, states the controlling
principle as follows:
•'The law has wisely provided that marriage may be proved by general repu-
tation, cohabitation, and acknowledgment. When these exist, it will be inferred
that a religious ceremony has taken place, and this proof will not be invalidated
because evidence cannot be obtained of the time, place, and manner of the cele-
bration of the marriage. On this point we think it unnecessary to do more than
quote from Redgrave v. Redgrave, 38 Md. page 07: 'Where parties live together
ostensibly as man and wife, demeaning themselves towards each other as such,
and are received into society and treated by their friends and relations as having
and being entitled to that status, the law will, in favor of morality and decency,
presume that they have been legally married. 1 Tayl. Ev. Sec. 140, 517: Hervey
v. Hervey, 2 W. Bl. 877; Goodman v. Goodman, 28 Law J. Oh. 745; Jewell v.
Jewell, 1 How. 219, 232. indeed, the most usual way of proving marriage, except
in actions for criminal conversation and in prosecutions for bigamy, is by general
reputation, cohabitation, and acknowledgment. Sellman v. Boioen, 8 Gill & J.
50; Boone v. Purnell, 2S Md. 607'."
23. See also O'Leary v. Lawrence, 113 Atl 638; Owens v. Bentley, 14 A 2d 391 ;
King v. C'linchfield Railroad. Co., 131 F Supp 218 (D. C. Tenn.) ; Sn&deth v.
Hawkins, 202 SW 2d 572; Rone's Estate v. Rone, 218 SW 2d 138; Gaiidreau. v.
Eclipse Pioneer Division of Bcndix Air Corp, 61 A 2d 227; 55 CJS Marriage,
Sections 43b and 45a (4) ; 35 Am .Tur Marriage Sections 200, 220 and 232; Sec-
tions 208 and 2083, Wiguiore on Evidence, Third Edition. In Vol 7, Am Jur,
Proof of Facts, at page 636, the current general rule is set forth as follows:
"Cohabitation and reputation do not constitute marriage, but proof of those
facts constitute circumstantial evidence that there has been a valid marriage.
If the cohabitation took place and the reputation existed in a place where
common-law marriages are not recognized—that is, in a place where only cere-
monial marriages are valid marriages—the cohabitation and reputation are
proof that a valid ceremonial marriage took place. From the general presump-
tion of innocence springs the presumption that a man and woman living together
are doing so in compliance with the law; they are presumed to be legally married.
The presumption is that the marriage was accomplished by a ceremony and that
the ceremony was valid. * » * Even proof that no record of the marriage exists
in likely states or counties does not suffice in the face of credible circumstantial
evidence that a ceremonial marriage took place."
24. Variations of the rule have been adopted by statute in several juris-
dictions. For example, section 39, chapter 457 of 'the New Hampshire Revised
Statutes Annotated, provides:
"Persons cohabiting and acknowledging each other as husband and wife, and
generally reputed to be such, for the period of three years, and until the decease
of one of them, shall thereafter be deemed to have been legally married."
Section 40, of the same chapter of the New Hampshire Revised Statutes
Annotated, provides:
"In all civil actions, except actions for criminal conversation, evidence of
acknowledgment, cohabitation, and reputation is competent proof of marriage."
Again, Section 1962 of the 104!) California Code of Civil Procedure lists certain
conclusive presumptions. Section 1063 then provides in part:
"All other presumptions are satisfactory, if uncontradicted. They are de-
nominated disputable presumptions, and may be controverted by other evidence.
The following are of that kinds:
30. That a man and woman deporting themselves as husband and wife have
entered into a lawful contract of marriage * ° *."
Section 93-1301-7, Revised Code of Montana, 1947, sets forth an identical
presumption.
25. English and American laws have played a large part in the formation of
the Philippine law, and, although so-called common-law marriages are not
recognized in that country and most ceremonial marriages must be recorded,
3(902 JUDICIAL REVIEW OF VETERANS' CLAIMS

it is not surprising that the presumption of marriage based on cohabitation and

reputation as husband and wife is given effect by the Philippine Courts, lu.
Sison v. Amoalada, decided by the Supreme Court of the Philippine Islands on
March 18, 1915, 30 Phil 118, involving disposition of some land acquired during
an alleged marriage, the defendant was shown by the evidence to have lived
with one Modesta as her husband from 1870 until 1886, when she died. Eight
children were born of the union. The defendant denied a lawful marriage-
to Modesta notwithstanding that they had held themselves out to the public
and were recognized in their community as husband and wife. The court's'
opinion reads in part:
"The legal presumption is that a man and woman living together as husband
and wife have entered into a lawful contract of marriage (Code Civ. Proc, Sec.
334, No. 28) ; but presumptions established by law may be destroyed by proof to
the contrary (Civ. Code, Article 1251). Proof to the contrary rests upon the
defendant, and he has adduced none whatever, for proof to overcome the legal
presumption is not constituted by absence of the marriage certificate in the books
of the parish of Balayan, wherein it is seen that other entries as important as
that of the marriage in question are lacking. Lack of record of an act or fact
in certain books of registry is not per se proof of the non-existence of the fact
or act, outside of the cases where the law specifically requires as essential
evidence the record itself or the inscription of the fact or act to be proven."
The statutory presumption referred to above is set forth in the Philippine
Rules of Court under Section 69(bb) of Rule 123. It is identical in all material
respects to the rule prescribed by the California Code, supra.
26. In the case of Adong v. Cheong Seng Gee, March 3, 1922, 43 Phil 43, the
presumption is discussed by the Philippine Supreme Court at page 56, as follows:
"The basis of human society throughout the civilized world is that of marriage.
Marriage in this jurisdiction is not only a civil contract, but it is a new relation,,
an institution in the maintenance of which the public is deeply interested. Con-
sequently, every intendment of the law leans toward legalizing matrimony..
Persons dwelling together in apparent matrimony are presumed, in the absence
of any counter-presumption or evidence special to the case, to be in fact married.
The reason is that such is the common order of society, and if the parties were-
not what they thus hold themselves out as being, they would be living in the
constant violation of decency and of law. A presumption established by our
Code of Civil Procedure is 'that a man and woman deporting themselves as hus-
band and wife have entered into a lawful contract of marriage.' (Sec. 334r
No. 28.) Semper praesumitur pro matrimonio—Always presume marriage.
(U.S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui vs. GJu,epangeor
supra; U.S. vs. Memoracion and Vri [1916], 34 Phil., 633: Teter vs. Teter [1S84],
101 Ind., 129.)" (Emphasis added.)
27. Of course, the presumption of marriage arising from marital cohabitation-
is open to rebuttal, and if it is established that there was in fact no marriage
between the parties, the presumption is dispelled. See, in general 55 CJS, Marri-
age, Section 45(a)(4) ; 35 Am Jur Marriage, Section 232. Presumption®
must be countervailed by substantial evidence. Del Veochio v. Bowers, 296 US
280, 80 L ed 229; Stone v. Stone, 136 F 2d 761, 763, (CA DC). The countervail-
ing evidence must, if believed by the trier of the facts, establish facts from which
reasonable minds can draw but one inference. Falstaff Breicing Corp. v.
Thompson, (CA 8), 101 F 2d 301, 304, cert. den. 307 US 631, 83 L ed 1514. See
also Section 118, Jones on Evidence, 5th Edition.
28. The Supreme Court of the United States pointed out at an early date in
Lincoln v. French, 105 US 614, 26 L ed 1189, that all presumptions as to matters
of fact capable of ocular or tangible proof are in their nature disputable, that
no conclusive character is attached to them, and that they may be rebutted and
overthrown. Presumptions must give way when in conflict with clear, distinct
and convincing proof. Fresh v. Gilson, supra. There is, however, a lack of
complete uniformity in the reported decisions of State and Federal Courts in
regard to whether a presumption once established continues to exist after any
credible competent evidence is introduced in opposition to facts on which the
presumption is based. See New York Life Insurance Company v. Gamer, 303
US 161, 82 L ed 726, and Dick v. New York Life Insurance Company, 359 US
437, 3 L ed 935, 941. No useful purpose would be served by discussion of the
underlying theories in regard to presumptions and their effect upon the burden
of proof giving rise to such difference of views. Suffice it to say that statutory
authority has been conferred upon the Administrator of Veterans Affairs under
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1903-

38 DSC 210 (c) to prescribe the nature and extent of proof and evidence to
establish claimant's rights to benefits, and, that it is always incumbent upon
the Veterans Administration to adopt procedures in regard to proof of facts-
which are best suited to the proper administration of the laws with due regard
being given to the rights of both the Government and claimants. The Veterans-
Administration has, in a proper exercise of this responsibility consistently r e -
quired that a widow assume the burden of establishing her marriage to the-
veteran, and her "unremarried" status after his death for the purpose of initially
establishing a right to benefits administered by the Veterans Administration,,
and it is equally essential in the proper administrative adjudication of claims
before this agency that a claimant for benefits as unremarried widow assume-
the burden of proving her right to resumption of an award of benefits in the-
face of evidence of an ostensible remarriage which causes a suspension of an
award because it raises a reasonable doubt in regard to her entitlement to such
benefits.1 However, once such a doubt is raised, the Veterans Administration
must resolve the factual issue whether the widow has remarried.
29. When the only evidence which can be adduced after full development of
a case does no more than raise a degree of doubt in regard to a widow's con-
tinued entitlement, and does not establish either direct evidence of remarriage
or the existence of circumstantial evidence which gives rise to a presumption
that a marriage was contracted, the issue must be resolved in the widow's-
favor; unless, for example, it be shown that the widow has, by act or omis-
sion, intentionally prevented full development of 'the evidence by the Veterans-
Administration. On the other hand, when the evidence establishes facts which
give rise to a presumption of marriage, the Veterans Administration's deter-
mination—for the purpose of laws administered by the Veterans Administra-
tion—that the widow has remarried may be grounded upon the presumption of
the fact of her remarriage until and unless the presumption is rebutted. There-
is no principle of law requiring that the Veterans Administration adopt any
particular theory in regard to the effect of evidence submitted in rebuttal o r
presumptions when it weighs the evidence adduced in rebuttal of the presump-
tion. The intent and purpose of statutes limiting benefits to widows "while-
unremarried" are fulfilled, and justice achieved, by simply adhering to prin-
ciples set forth in the rules relative to presumptions followed by many courts-
in this country, and which are embodied in the Uniform Rules of Evidence ap-
proved by the American Law Institute. These rules read as follows:
Rule 13:
"Definition. lA presumption is an assumption of fact resulting from a rule
of law which requires such fact to be assumed from another fact or group of"
facts found or otherwise established in the action."
Rule 14 provides:
"Effect of Presumptions. Subject to Rule 16, and except for presumptions,
which are conclusive or irrefutable under the rules of law from which they
arise, (a) if the facts from which the presumption is derived have any proba-
tive value as evidence of the existence of the presumed fact, the presumption
continues to exist and the burden of establishing the non-existence of2 the
presumed fact is upon the party against whom the presumption operates, (b)
if the facts from which the presumption arises have no probative value as
evidence of the presumed fact, the presumption does not exist when evidence
is introduced which would support a finding of the non-existence of the pre-
sumed fact, and the fact which would otherwise be presumed shall be deter-
mined from the evidence exactly as if no presumption was or had ever been
involved."
Rule 15 provides:
"If two presumptions arise which are conflicting with each other the judge
shall apply the presumption which is found on the weightier considerations
of policy and logic. If there is no such preponderance both presumptions shall
be disregarded."
1
Even assuming, arguendo, that the burden of proof should rest upon the Government -
to prove remarriage of a widow, the burden would be met—and a prima facie case estab-
lished—by proof of facts giving rise to the presumption of marriage, unless the widow-
could
3 in turn successfully rebut such a presumption by clear and convincing evidence.
Of course, evidence of cohabitation of a man and woman who are free to marry and"
who represent themselves to persons in their community as husband and wife, and who-
are generally believed by such persons to be married has probative value.
 1904 JUDICIAL REVIEW OF VETERANS' CLAIMS

Eule 16 provides:
"Burden of Proof Not Relaxed as to Some Presumptions. A presumption,
which by a rule of law may be overcome only by proof beyond a reasonable
doubt, or by clear and convincing evidence, shall not be affected by Rules 14
or 15 and the burden of proof to overcome it continues on the party against
whom the presumption operates."
30. In the administrative adjudication of cases involving whether or not a
presumption of marriage has been rebutted by credible evidence, it is essential
that each case be determined upon its own facts and circumstances and the
inferences which should fairly and reasonably be drawn from them. A
properly established presumption of marriage exists only when there is proof
of each one of these facts:
.(1) A cohabitation by the widow with a man as man and wife; and
(2) a "holding out" by the two persons to the general community in
which they reside that they are husband and wife (which generally is
embraced in the requisite cohabitation) ; and
(3) a general reputation in such community that they are married to
each other.
A presumption of marriage thus arising constitutes proof of the fact of
remarriage for Veterans' Administration purposes unless the evidence in sub-
stantiation thereof is rebutted. The presumption grows stronger with the
passage of time during which the cohabitation continues, and when children
born of the relationship are recorded as legitimate. It may only be rebutted
by satisfactory, clear and convincing proof that no marriage ever existed be-
tween the parties who had ostensibly married. The scope of evidence necessary
to rebut the presumption will vary with the facts and circumstances of each
particular case. For example, proof of an impediment to a valid marriage,
such as a prior subsisting marriage of the man with whom the widow has
lived may suffice in one case, while in another case, proof that any one of
the three circumstances enumerated above were lacking would accomplish the
same result. It must always be borne in mind, however, that widows' claims
for gratuitous benefits administered by the Veterans Administration are con-
tinuing claims for monthly installments which are due and payable to widows
each month only so long as they remain unremarried widows. Therefore, the
continuing burden of proof always rests upon a widow to prove her claim in the
fact of evidence of ostensible remarriage which raises the necessity for recon-
sideration of her entitlement, even though this requires proof of a negative-
no remarriage. Compare Ilea v. Fornan (Ohio), 46 NE 2d 649.
31. It also must be borne in mind that a widow's self-serving denial of re-
marriage must be evaluated in the light of her conduct which belies her words.
See Brown's Adm'r. v. Brown, 308 Ky 706, 215 SW 2d 971, 975, wherein the
court said of a litigant's denial of a marriage which had otherwise been estab-
lished by disinterested witnesses' testimony of marital cohabitation and reputa-
tion, which raised a presumption of marriage:
<•* * * conduct speaks louder and more convincingly than * * * words."
See also Scott v. Scott, 200 Ky 153, 252 SW 1019. Lowicki v. Filner, decided
by the Superior Court of Pennsylvania in 1943, 31 A 2d 754, further exemplifies
the sound principle that a self-serving denial of marriage bears little weight in
the face of strong circumstantial evidence that a marriage occurred. This case
involved a proceeding to terminate Workmen's Compensation Benefits of a
widow on the ground she had remarried. The claimant offered no testimony
other than her own—which the court described as "simply incredible"—^to
overcome the presumption of marriage raised by cohabitation and reputation.
The court's opinion affirming the lower court's judgment terminating Workmen's
Compensation Benefits to the widow, reads in part as follows:
"Here, there was nothing but a flat denial by claimant that she had ever
lived with Schaney as his common law wife, and that denial was in the face
of incontrovertible testimony that she bore him a child: stated for the purpose
of the birth certificate that the child was legitimate; lived with Schaney in
rooms for which he paid the rent over a period of three years (she testified
that they occupied separate bedrooms) ; purchased groceries and had her two
children by her first marriage also purchase groceries on an account opened
in his name; and made application for and received public assistance as his
•wife on three separate occasions, one of them being five months before the
child she bore him was born. As the referee aptly said: 'She represented herself
as Mrs. Lowicki for purposes of compensation and Mrs. Schaney for purposes
of relief."
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1905

32. Graham v. Graham, 274 P 2d 605, is to the same general effect. There, the
plaintiff's suit for alimony due her until remarriage was dismissed by the lower
court upon proof of cohabitation and reputation raising a presumption of her
common-law marriage to the man with whom she lived, even though the plaintiff
denied any agreement to marry and the other party to the alleged marriage did
not testify in regard to the matter. The Supreme Court of Colorado affirmed
such action. No other conclusion may properly be reached in this type of case
either by a court in a judicial trial of the issue, or by a federal administrative
agency in a quasi judicial determination of an analogous issue, for it seems
manifest that a widow's self-serving denial of remarriage, which is not only
upsupported by credible corroborative evidence, but is also in direct conflict
with the circumstantial evidence of her marriage, can be accorded little or no
weight to disprove either a common-law or ceremonial marriage. Moreover,
when a widow-claimant is shown by the weight of credible evidence (as in
the instant case), to have falsely denied a fact concerning which she could not
have been mistaken, such as whether she lived with a certain man at a given
time and represented he was her husband, her testimony on her own behalf
must be weighed in accordance with the maxim falstis in uno, falsus in omnibus.
The Supreme Court of the United States' query in The Santiss-ima Trinidad and
The St. Ander, 7 Wheat 283, 5 L ed 454, is apposite:
"* * * What ground of judicial belief can there be left, when the party has
shown such gross insensibility to the difference between right and wrong,
between truth and falsehood?"
See also 32 CJS Evidence, Section 1031a, 4 ALR 2d 1077 (anno) : Brant-
ley v. Sheens, 266 P. 2d 447.
33. This opinion substantially restates, amplifies, and clarifies principles for
application in widows' ostensible remarriage cases which have heretofore been
set forth in some detail in earlier opinions of the General Counsels and former
Solicitor of the Veterans Administration during the past decade. However,
when consideration is given to the vast number of opinions rendered during this
period and the large variations of fact situations involved therein, some of the
opinions may appear either by their choice of language, or by their application
of the governing principles to specific fact situations, to conflict with the present
opinion. Consequently, henceforth in the event of any such apparent conflict
between earlier opinions and the opinion in the instant case, this opinion will
be deemed controlling in regard to all future determinations involving analogous
circumstances.
34. The evidence of record in the case giving rise to the two questions set
forth in paragraph 2 establishes that the widow has cohabited with a man as
his wife after death of the veteran, that they have generally represented them-
selves to persons in the community in which they live as husband and wife,
that children born of their relationship are recorded as legitimate, and that
they enjoy a general reputation as married persons in the community. Such
facts with respect to cohabitation and reputation give rise to a presumption of a
valid marriage which, absent proof of a legal impediment thereto or other
satisfactory evidence in rebuttal of the presumption, may be relied upon by the
Veterans Administration to preclude recognition of an unremarried status. The
answer would be the same had all the circumstances giving rise to the presump-
tion of marriage occurred in a jurisdiction recognizing common-law marriages.
FRED B. RHODES, Jr.
Mr. NTJSSBATJAI. Jfow, in the Bautista case, a year and a half after
the decision in Sinlao, the General Counsel considers this question:
Whether the payment of benefits administered by the Veterans' Administra-
tion to a widow in monthly installments and subject to a statutory limitation
requiring termination in the event of her remarriage be discontinued when the
claimant asserts to the Veterans' Administration that she has not remarried
but the preponderance of credible evidence before the Veterans' Administration
and frequently adduced by it establishes she has cohabited with a man as his
wife in a jurisdiction which does not recognize common law marriages.
That essentially is the question considered. The Administrator,
through his General Counsel, proceeds to conclude the lady is not
entitled to compensation in direct, absolute opposition to the opinion
of the U.S. Court of Appeals construing the same statute in the
Sinlao case.
 1906 JUDICIAL REVIEW OF VETERANS' CLAIMS

' Now, is this an isolated case? I say to you gentlemen it is not. On

J u n e 1, 1961, and I would like to tender to the committee this
opinion—this is in Mondido, Fortunato, XC20258356. The same
question, the same result. The Administrator laughs at the courts
because the courts cannot put him in line.
I won't burden the committee by going into further detail.
I t is almost gilding the lily to look for more reasons for judicial
review after reading the committee hearings in 1960 and your report
No. 2031 of the 86th Congress on H.R. 12653. I concur entirely with
the views presented by the committee.
You really need only to study the mechanics involved in creating
such right of review. I believe that the various proposals creating
a five-judge Court of Veterans' Appeals, with the same machinery
as the U.S. Court of Claims, are the only feasible methods because
of the specialized field of law here involved.
This seems to have justified the creation of other special courts in
our history. The Tax Court, the Court of Customs Appeals, and
even the Court of Military Appeals where special bodies of law are
built up.
Furthermore, our Federal District Court system now bears an ex-
cessive load which we should hesitate before increasing further,
especially by the requiring of the judges specialized knowledge in a
narrow branch of statutory law.
The testimony of Congressman Devine and that of Mr. Eaoul Ber-
•ger for the American Bar Association in 1960 are eloquent and I think
support the views of my association.
Now I do not intend to give the impression to this committee that
the Veterans' Administration is always wrong or always arbitrary
and capricious. That is just not true. By far it is manned by con-
scientious and capable people who seek to do equitable justice con-
sistent with the liberal and humane congressional purposes. How-
ever, no human being is exempt from error, intentional or
unintentional and when we look to one of the governmental agencies
with so large an annual budget and responsibilities for tens of mil-
lions of claims, the opportunity for honest mistake is increased
Tjeyond comprehension. The payment of compensation is as much
a p a r t of the cost of fighting a war as the payment for ammunition
for our weapons but it deals further with our human resources for
future generations.
Our U.S. District Court adjudicates far fewer suits than the Vet-
erans' Administration does claims. Yet we would not dare to think
for a moment of limiting the review of the District Court by the Cir-
cuit Court of Appeals and the U.S. Supreme Court.
I do not agree with opponents of this legislation, that such a Court
of Veterans' Appeals would be engulfed by claims without merit.
'There are safeguards. Certainly our experience with national service
life insurance suits does not establish that fact. True, under our sys-
t e m of law, one cannot prevent claimants from filing suits in proper
person and not all attorneys have equal ability to evaluate a case.
Yet this defect has not paralyzed the courts of general jurisdiction
nor would it adversely affect the proposed court. Such review must
T>e by trial de novo because the present statute denies a claimant the
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1907

effective assistance of counsel when the maximum fee paid to an at-

torney on a claim is $10. The veterans' organizations have for years
•done a valiant job. Their service officers do their best. Their efforts
are, however, subject to certain limitations and that is the fact that
.generally the service officers are not trained attorneys at law, members
of the bar subjected to a disciplinary study of the law under different
standards.
An example of what can happen is, if the committee will recall the
.graduated ratings for arrested pulmonary tuberculosis in the 1945
rating schedule. There came a time, as I recall about 1949 when
Congress enacted those graduated ratings into statute. You made one
significant change. You did not enact into the statute one word which
appeared in the Administrator's schedule. That was the word
"pulmonary." Now, when the statute was signed, because law, I
presented for rating under the statute the case of a World W a r I I
disabled veteran who had arrested tuberculosis of the knee joint and
they refused to grant him the rating, saying, "Well, Congress made
a mistake." You left the word "pulmonary" out.
That is what is wrong with the Veterans' Administration. I t took
a year before the General Counsel construed the statute the same way
I did and apparently the same way Congress did. Congress didn't
restrict it to pulmonary," and the VA finally determined it had to
p a y - . . .
I t is this attitude, this immunity from judicial review, which made
it possible for the Veterans' Administrator to become a law unto him-
self, unknown to any other agency of the U.S. Government, unknown
in any agency of State or municipal government.
I will mention further, and I think I am still right on this point,
the VA is a little handicapped if it claims a monopoly on expertise
in this field of law. I believe the adjudicators in the Veterans' Ad-
ministration are still being paid at GS-9 rating, which ranges from
$6,400 to approximately $7,900 a year and in this day and age it is
a fair question to ask, "What caliber of legal experience can an at-
torney have whom you can obtain at that salary?" You are either
obtaining those who have not better qualified themselves or the newly
graduated attorney who hasn't any expertise at all.
Every stone turns up the need to establish public and congressional
confidence in the Veterans' Administration handling of claims and
t h a t confidence can best be established by the creation of a special
court of veterans appeals which I submit will have two effects:
First, it will give to the aggrieved claimant a trial de novo and a day
in court. Second, it will create a body of judicial interpretation for
the hundreds of laws administered by the Veterans' Administration.
Both of these effects will serve to elevate the adjudication process
of the Veterans' Administration by explanation and by discipline.
Trial courts have been known to express their satisfaction that ap-
pellate courts exist to correct their errors. The Administrator of Vet-
erans Affairs should be given the same source of satisfaction.
Gentlemen, you have honored the Association of Plaintiffs' Trial
Attorneys of the District of Columbia by granting me the privilege
of presenting its views and mine personal]}', as lawyers, as veterans,
and as citizens, and I thank you very much in behalf of the association;
Mr. KORNEGAT. Thank you.
1908 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. Say lor, any questions?

Mr. SAYLOR. First, Mr. Nussbaum, let me take the time to thank
you for coming here and presenting to this committee the views of
your association, which, in my opinion are made a great deal better
because of your own personal experience, first as an ex-service officer
of the D A V and as a trial lawyer here in the District of Columbia.
Now, as you began your statement, you referred to the fact that
your organization has endorsed the courts as set u p in H.R. 849.
There have been a number of other bills introduced by other Members
of the Congress, all of which call for a judicial review but varying in
some minor respects. Would the testimony that you have given ap-
ply not only to the bill you referred to, but to the general principle
of establishing a court of review ?
Mr. NUSSBAUM. I t would, sir. I would like to add that in particu-
lar at the time the association made its unanimous endorsement of
this principle, it was on the basis of a lengthy discussion of the pro-
visions of H.R. 849 which appealed to the association particularly be-
cause of the marvelous safeguards set u p around the quality of the
court which would be created, the restrictions on the qualifications of
judges and commissioners which we believe elevate the prestige and
the quality of any court.
Mr. SAYLOR. The next question I have has to take you back to the
days when you were the national service officer for the DAV. Do you
have any idea of the number of cases that your organization handled
before the Board of Veterans' Appeals ?
Mr. NTJSSBAUM. You are taking me back a very long time and I
cannot give you a figure at this moment. I can give you some in-
teresting figures from about 1948, the rating schedule board and field
supervision of the Veterans' Administration in the Veterans' Claims
Service, and I am pleased to mention that Mr. Freudenberger, director
of legislation for the Disabled American Veterans was then chief of
field supervision. Those two groups agreed to accept cases for ad-
ministrative consideration on questions of policy and practice in the
Veterans' Administration.
Our central office, in behalf of the D A V Avas flooded with requests
from throughout the country. I t is my recollection that we care-
fully weighed the cases so that those cases which were in fact ap-
pellate questions should not be presented administratively and we
restricted ours to presenting questions of policy interpretation and
procedure.
I know full well that our results on those cases when this unusual
privilege was granted to us, was that in three out of five the field
rating agencies of the Veterans' Administration were reversed.
Mr. SAYLOR. I n your experience as the national service officer of
the DAV, can you recall the number of dissenting opinions, if any,
that were filed in the cases in which you were interested ?
Mr. NTJSSBAUM. Yes, sir. They were extremely few. Now in par-
ticular, in the Claims Division as it was then constituted in the central
office, headed by the Chief of the Claims Division and under him the
Central Disability Board, which had 30 members, highly qualified at-
torneys and physicians, mostly with many, many years of rating ex-
perience, a dissenting opinion was rare and in the event of a dissent,
the case was reviewed by the Chief of the Central Disability Board
and then by the Chief of the Claims Division.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1909

Now if the Chief agreed with the dissenting opinion, we never knew
it because I do not recall any file that showed it. I do recall occasions,
very rare occasions, in which there was a written dissent and agree-
ment by the Chief of Claims Division in the majority opinion. I t may
be that the procedure in the case of a dissenting opinion was not ade-
quate enough to give the Board members a greater freedom, since they
felt that their dissent would be a vain act. If, in the case of a dis-
senting opinion, the case automatically would be sent to the Board of
Appeals for review, I think more dissenting appeals would be filed.
Mr. SAYLOR. F o r the record, Mr. Nussbaum, how long have you been
admitted to the practice of law ?
Mr. NUSSBAUM. Since 1953.
Mr. SAYLOR. You are a resident of the District of Columbia ?
Mr. NUSSBAUM. I am, sir.
Mr. SAYLOR. You are admitted to all the courts, U.S. courts here
in the District ?
Mr. NUSSBAUM. Yes, including the U.S. Supreme Court.
Mr. SAYLOR. In your experience as a lawyer, and in the experience
of the association which you here represent, have you ever known of
a minor court that objected to having its decisions reviewed by a
higher court?
Mr. NUSSBAUM. On the contrary, sir, as was referred to in my state-
ment, the nisi prius judges, the judges of trial jurisdictions, welcome
the appellate review of their decisions, because it means they need not
bear alone the responsibility for an error. There is a guardian to
watch their mistakes.
Mr. SAYLOR. One of the things, and this is only my own observation,
one of the things that has made me interested in establishing this
court, is that the Board of Veterans' Appeals appears to be afraid to
have anybody look at them. The only conclusion I can come to is that
they must be trying to hide something. They must be afraid to have
somebody look at their records. This is the only conclusion I can
come to. I am not asking you to comment on that.
Now, one of the questions which this committee is going to have to
determine, if we establish this judicial court of review, is as to the date
upon which a claim should be paid if it is established that it is a serv-
ice-connected disability. Do you have any comments on that matter?
Mr. NUSSBAUM. I do, sir. I n the Veterans' Administration, as the
law is administered, if a veteran files his claim within 1 year from the
date of separation from the service and the nature of the disability is
such that it would have existed during the entire period he is paid
from date of discharge. If he files his claim more than 1 year after
discharge, the adjudication will be from date of receipt of the evidence
upon which the favorable action is taken. If the evidence is retro-
active in caliber, the same result will apply, that it will be from date
of receipt of the evidence.
I don't think that t h a t is a bad rule because a certain degree of dili-
gence should be required of a claimant. I do not think he ought to
sleep forever on his rights.
On the other hand, I do despair of the corollary and that is the
fact that when the Veterans' Administration has denied a claim and
it is then allowed on what is called administrative difference of
1910 JUDICIAL, REVIEW OF VETERANS* CLAIMS

opinion, benefits are granted from the date of that opinion. They are
not retroactive.
Now, the contrary holds true when the Board for the Correction
of Military Records of the various service departments acts on a
case and it results in the payment of benefits. As a matter of course,,
those benefits are paid retroactively.
There has always been some expression of the theory that the
claimant has survived and the purpose of the compensation is to keep
him surviving. Well, since he has survived to this date, i t will keep
him surviving in the future. I don't agree with that. I think that is
a heartless way to deal with a claimant.
I would like to comment, sir, with your permission, on my personal
views of the Board of Veterans' Appeals.
Mr. SATLOR. G O right ahead.
Mr. NTJSSBATJM. I think there are many men of great ability. I
know, and there is no humor in what I say now, that we used to look
at the heading of the Board of Veterans' Appeals decision where
"Question at Issue" and "Denied" or "Allowed" appeared right at
the heading and we could usually predict the signatures at the end
of the opinion from the nature of the issue before the Board. Dis-
senting opinions in the Board of Veterans' Appeals were very, very
scarce.
I would also like to mention a very interesting G I insurance case..
This was the very first one I had after I went into private practice,.
Ohristensen v. United States, which I filed suit in the U.S. District
Court for the District of Columbia in 1953. This is why I believe
in judicial review, too. Here was a World W a r I I Navy veteran
who suffered a massive head injury as a result of which Veterans'
Administration rated him 100 percent disabled. The man never
worked a day after he got out of the service. There was no dispute
about the facts. H e was never married. H e had no children. H e
lived with his aged mother up in Frostburg, Md. She was about 90
when I met her. She was the beneficiary of his $10,000 national serv-
ice life insurance policy. H e permitted the policy to lapse when he
got out of the service for nonpayment of premium.
Now, all this man had to do was to file an application for waiver of
premium by reason of total disability. H e would have had it. He
didn't so file. Now there is statutory and regulatory provision that
if the failure to file for waiver of premium is due to circumstances
beyond the control of the insured that it will not be a bar to grant of
such waiver to keep the insurance in force.
This unfortunate man committed suicide about 1951. The Veterans'
Administration, at all levels, through the Board of Veterans' Appeals,
held his failure to file application for waiver of premium was not
beyond his control and denied the payment of the insurance to his
aged mother. I filed suit on that case. To my amazement it never
went past the stage of my filing suit, because the Department of Justice
completely agreed with me and told the Veterans' Administration that
if it didn't reverse itself it would consent to judgment for the full
policy.
The Board of Veterans' Appeals then entered an opinion, and I have
seen it—it is in t h a t claim file—sui sponte, reversing itself. A n d
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1911

I tliink that is ridiculing the processes of justice. • Sui sponte, under

the aegis of the U.S. court and the Department of Justice.
Mr. SATLOR. One further question.
W h a t limitation, if any, do you think should be placed upon the
fees of attorneys who represent claimants before this Court of Vet-
erans' Appeals?
Mr. NussBAtTM. I know that historically the origin of the $10 lim-
itation was an early day abuse by claims agents and attorneys and
it is unfortunate that one extreme led to another. I tliink there
should be a safeguard, a fee limitation. I do not believe that the
fee limitation in the national service life insurance statute of 10 per-
cent is realistic, certainly, in this day of the shrinking dollar. On
the other hand, I would accept the philosophy that accompanying
the original pleading in the proposed court there be filed a copy of
the attorney's fee agreement with the claimant and that such fee
agreement be subject to the power of the court to revise it.
Mr. SAYLOR. Would you prefer that method to having a provision
placed in the statute that the court itself in each case, considering the
case on its merits, fix the compensation of the attorney?
Mr. NUSSBAUM. I would not fear the court fixing the compensa-
tion of the attorney because this would be a court composed of law-
yers and men who have practiced law and it is notoriously true that
we have no fear of the judges fixing our fees. If they have practiced
law, they are extremely fair to counsel.
Mr. SAYLOR. I want to thank you for your testimony, Mr. Nuss-
baum, and your answers to these questions.
Mr. NUSSBAUM. Thank you.
Mr. KORSTEGAY. Mr. Ellsworth ?
Mr. ELLSWORTH. N O questions.
Mr. KORNEGAY. Mr. Nussbaum, Mr. Saylor asked this, but I will
ask it for Mr. Haley who had to leave temporarily. I will ask you
specifically if your statement relative to 849 pertained also to the
following numbers of bills: H.R. 7755, H.R. 3263, and H.R. 4154.
Mr. NUSSBAUM. I t does, sir
Mr. KORNEGAY. Mr. Nussbaum, I want to thank you for taking your
time and coming here to testify. You made a very fine statement
based on your long experience in the field.

STATEMENT OF FRANCIS W. STOVER, DIRECTOR, NATIONAL LEGIS-

LATIVE SERVICE, VETERANS OF FOREIGN WARS; ACCOMPANIED
BY NORMAN JONES, DIRECTOR OF NATIONAL REHABILITATION
SERVICE, VETERANS OF FOREIGN WARS
Mr. KORNEGAY. Our next witness is Mr. Francis Stover, director
of the national legislative service of the Veterans of Foreign Wars.
Do you have someone with you, Mr. Stover ?
Mr. STOVER. Mr. Chairman and members of the subcommittee, I
have with me a t the table Mr. Norman Jones, director of our national
rehabilitation service.
Mr. KORNEGAY. W e are delighted to have you, Mr. Jones.
Mr. Stover, suppose you just go ahead with your statement.
1912 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. STOVER. Mr. Chairman and members of the subcommittee, my

name is Francis W. Stover and I am the director of the national legis-
lative service of the Veterans of Foreign Wars of the United States.
Thank you very much for this privilege and opportunity to appear
here this morning to present the V F W national viewpoint with respect
to the approximately dozen bills pending before this subcommittee
wThich relate to the judicial review of veterans' claims.
The national position of the Veterans of Foreign Wars is formulated
principally by resolutions adopted at our annual national conventions.
The V F W is opposed to the establishment of an independent court to
review veterans' claims. This position is found in Resolution 264
adopted at our 62d national convention held in Miami Beach, Fla.,
August 20-25, 1961, which reads as follows:
Whereas at our February conference in Washington, D.C., our commender in
chief expressed the position of this organization, opposing the establishment of a
court of law to review disallowed cases of the Board of Veterans' Appeals ; and
Whereas it is the consensus of this committee that reaffirmation of this stand
be taken by this convention assembled: Now, therefore, be it
Resolved, by the 62d National Convention of the Veterans of Foreign Wars of
the United States, That this convention assembled reaffirm its previous stand
opposing any court of review of Board of Appeals decision.
To fully understand this resolution, it may be helpful to review the
position of the Veterans of Foreign Wars respecting court review of
veterans' claims. Back in 1958, the 59th Annual National Convention
of the Veterans of Foreign Wars, which was held in New York City,
August 17-22, 1958, adopted a resolution identified as No. 280 oppos-
ing the establishing of a court of veterans' appeals, but called for a
study of the then present appeals system of the Veterans' Adminis-
tration. A copy of the entire resolution is attached. This Resolution
258 further recommended a V F W study committee be appointed with
a request to report back to the commander in chief before the next
national convention, which was scheduled for August of 1960.
Such a study committee was appointed but did not report back in
time for the next national convention. The 60th national convention,
therefore, took notice that such a study was pending and simply re-
affirmed our previous position by adopting a resolution identified as
6-F, which reads as follows:
Reaffirm Resolution 280 passed at 59th national convention.
Subsequently, the study committee authorized by the 59th national
convention did report and made 14 specific recommendations con-
cerning the Board of Veterans Appeal with corrective recommen-
dations. Under date of August 14, 1959, the Veterans' Administra-
tion replied to these recommendations. These recommendations and
replies thereto were a part of the testimony of the Veterans of Foreign
W a r s when we appeared before a special subcommittee in April of
1960, which was considering the same proposal presently before this
subcommittee today and rather than to go through them all again they
are found on pages 2361 through 2377 of the hearing record.
No further official action was taken by the V F W concerning this
proposal until the next national convention, which was held in Detroit,
Mich., August 21-26, 1960. The delegates to this convention were
confronted with three separate resolutions, two of which favored and
one which opposed judicial review of veterans' claims. The national
 JUDICIAL REVIEW OF VETEKANS' CLAIMS 1913

convention resolved this dilemma by recommending that the matter

he referred to the incoming commander in chief for study and recom-
mendation by another special study committee.
Pursuant thereto the commander in chief appointed a special study
committee of 10 outstanding distinguished citizens and members of
the Veterans of Foreign Wars to consider this matter. Without re-
viewing all of the actions taken, the special study committee, for the
reasons set forth in the attached study entitled "Eeport Judicial
Study Committee," by a Afote of 9 to 1 urged against establishment of
this court.
This, therefore, is a very brief history of the considerable time and
'effort that has been devoted by the Veterans of Foreign W a r s to the
subject of the establishment of a special court to review veterans'
•claims. With few exceptions, the V F W has consistently opposed
such a change in the present veterans' claim setup.
The Veterans of Foreign Wars, therefore, opposes the establishment
of a tribunal which will have independent authority to review claims
and decisions rendered by the Veterans' Administration. This is a
position which was not hastily arrived at and as indicated above is
a longstanding one. The creation of this court would be a basic
•change in the administration of veterans' benefits.
I n closing, it is vigorously urged that this subcommittee grant sym-
pathetic consideration to our views. Thank you for this opportunity
of appearing here before this subcommittee.
Mr. KORNEGAY. If there is no objection, the resolution and study to
which the witness has referred will be incorporated in the record, at
t h i s point.
RESOLUTION 280
COMMITTEE TO REVIEW PRESENT STATUS AND ACTIONS OF BOARD OP
VETERANS' APPEALS
Whereas during the last 25 years, there has been no improvement in the pro-
cedure under which the Board of Veterans Appeals is authorized to function
making it evident that some change for the better is warranted and necessary ;
:and
Whereas resolutions have been submitted to this convention calling for a cor-
rection of the present situation in regard to personnel and decisions of the Board
of Veterans Appeals ; and
Whereas legislation has been introduced in the present session of Congress
which would amend the Veterans Benefit Act of 1957 identified as Public Law
•85-56, and provide a Court of Review which court would have the power and
authority to review decisions rendered by the present Board of Veterans Appeals;
and
Whereas it is further noted that the Veterans Affairs Committee of the House
of Representatives has indicated that action may be taken by that body in the
next session of Congress regarding the Board of Veterans Appeals; and
Whereas the Veterans of Foreign Wars recognize the far-reaching effect of
any action on this question, it being their continuing obligation to render the
best possible assistance to the veterans and their dependents and the Govern-
ment of the United States of America ; and
Whereas we do not approve of the establishment of a seperate court outside of
the Veterans' Administration : and
Whereas we contend that ample authority now exists within the powers of
the Administrator whereby any indequacies, particularly as to the appellate
•authority on the part of the Board of Veterans Appeals can be eliminated
and/or corrected: Now, therefore, be it
Resolved by the 59th National Convention of the Veterans of Foreign Wars of
the United States, That in accordance with the established policy of the Veterans
S00S2—62 13
1914 JUDICIAL REVIEW OF VETERANS' CLAIMS

of Foreign Wars that we continue to oppose any effort to divide the responsibility
for the administration of veterans laws and continue our insistence that the
Veterans' Administration be kept intact; and be it further
Resolved, That inasmuch as there has not been sufficient time or material
available for this committee to completely and adequately study the complex
situation as it now exists, that we recommend to the commander in chief as
follows:
1. That a committee be appointed with sufficient funds and authority to make
a complete review of the present personnel and operations of the Board of
Veterans Appeals.
2. That this committee shall consist of such specialists as needed from the na-
tional rehabilitation staff and department service officers.
3. That the committee be composed of sufficient members to complete the
investigation fully and expeditiously.
4. That upon the completion of the review the chairman of the committee shall
make a complete written report to the commander in chief including all facts,
findings, and recommendations.
5. That this report be completed and presented prior to the convening of the
next session of Congress.
Adopted at the 59th Annual Convention of the Veterans of Foreign Wars of
the United States, held at New York, N.T., August 17-22,1958.

VETEEANS OF FOBEIGN WABS OF THE UNITED STATES—REPOET OF JUDICIAL STUDY

COMMITTEE
To: Ted C. Connell, national commander, Veterans of Foreign Wars of the
United States.
From: William C. Ouzts, chairman, special study committee.
R e : proposed Federal court for review of disallowed veterans' claims and re-
adjustment assistance benefits for peacetime service.
The 61st National Convention of the Veterans of Foreign Wars of the United
States convened August 1960, in Detroit, Mich. Appearing before the convention
resolution committee on rehabilitation and welfare were three resolutions per-
taining to the question at issue, that is, whether the Veterans of Foreign Wars
should or should not endorse and support the establishment of a Federal court to
review disallowed cases of the Board of Veterans Appeals. Resolution 27 and
Resolution 254 favored the establishment of such a court and Resolution 224
opposed judicial review as such. Because of the long history of the question
before our organization the said convention committee recommended that the
matter be referred to the commander in chief for study and recommendations
by a special study committee. The 61st national convention adopted the
proposal.
Accordingly, and pursuant to the mandate of the 61st national convention,
your commander in chief appointed, formulated, and organized a special study
committee of 10, composed of 5 department service officers and 5 other excellent
and distinguished comrades. Bach conference is represented on the committee
in equal numbers. The committee is composed of:
George D. Lyon, Box 9025, Long Beach, Calif.
John E. Smalley, Building 27, USVA, Fort Snelling, St. Paul, Minn.
Fred Mancuso, Home Savings Building, Kansas City, Mo.
Dr. Farris D. Evans, 2802 East Central, Wichita, Kans.
Asa D. Kelley, Jr., Whitehead Building, Albany, Ga.
G. O. Pike, 208 SW., 5th Avenue, Portland, Oreg.
Lewis J. Piccirillo, 95 Pearl Street, Hartford, Conn.
Joseph V. Riley, 4 Market Street, Ipswich, Mass.
Joseph W. Mann, 210 Gratiot at Library, Detroit 31, Mich.
William C. Ouzts, 1801 Assembly Street, Columbia, S.C., chairman.
Before proceeding further it appears highly appropriate to acquaint you with
the history of the problem before us, as follows:
On May 6, 1952, the Director of the National Legislative Service presented
testimony on this subject to the Committee on Veterans Affairs of the House
of Representatives. At that time the Director advised the Veterans Affairs
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1915

Committee, which was then considering four varied proposals, that although
the subject has been considered by the V.P.W. on several prior occasions, it
had never received approval by a national convention.
In 1951, the 52d National Convention considered Resolution 228 captioned
"Authority of Board of Veterans Appeals," which proposed to make the Board
of Veterans Appeals independent of the Administrator of Veterans Affairs but
remain within the VA. It requested Congress to define or redefine the juris-
diction of the "new" Board. This resolution was referred to the National Wel-
fare and Service Committee. The proposal apparently was not considered by
the Congress.
In 1952, the 53d National Convention adopted Resolution 48 which recom-
mended the establishment of a "Board of Equity" in the VA. The 54th National
Convention in 1953 adopted Resolution 373 which was identical to Resolution 48
of the 53d National Convention. These resolutions expressed no complaints that
the VA was not then complying with the basic law. They did request that the
BVA be given authority to grant so-called compassionate awards. Such au-
thority would presumably permit a payments in meritorious cases, for instance,
in the case of a woman who bore 10 children by a veteran but could not prove
valid marriage. These resolution required legislative action, but did not receive
favorable consideration by the Congress.
In 1953, the Department of Montana submitted Resolution 77 captioned "Ap-
peals Court for VA Rulings" which requested the establishment of a spe-
cial judicial tribunal outside of the VA with the right of appeal therefrom to
existing Federal courts. It was rejected with a notation that the proposal was
"unconstitutional."
In 1953, the 54th National Convention adopted Resolution 414 captioned "Vet-
erans Benefits v. Comptroller General". It was approved in principal and re-
ferred to the NRS. In effect Resolution 414 delineated the more important
statutory provisions on the finality of VA decisions and requested that the
Comptroller General and other Federal agencies be restrained from interfering
therewith. This resolution could be construed as opposing judicial review.
In 1954, the 55th National Convention rejected Resolution 222 submitted by the
Department of Montana. Resolution 222 was similar to Resolution 77 sub-
mitted by the Department of Montana in 1953.
In 1955, the 56th National Convention adopted Par. (C), Resolution 4, which
indicated that it is often futile to question the legality or propriety of VA
regulations as such complaints are automatically routed to the same officials
who originated such regulations. This resolution requested establishment of
a special board within the VA to pass on such questions. It did not receive
either administrative approval by the VA or action by the Congress. The 56th
National Convention did not consider the subject of judicial review of BVA
decisions.
In 1956, the 57th National Convention adopted Par. 5, Resolution 5, which
recommended that no gratuitous benefit administered by the VA be subjected
to judicial review by the courts. In 1957, the 58th National Convention adopted
Par. 6, Resolution 8, and also Resolution 61, in opposition to court review of
VA decisions with respect to gratuitous benefits.
In August 1958, the 59th National Convention adopted Resolution 280 which
generally disapproves the establishment of a special court to review BVA
decisions but does recommend a comprehensive study intended to reveal inade-
quacies of the BVA as now operated, and recommendations for correction of
such inadequacies.
In August 1959, the 60th National Convention reaffirmed Resolution 2S0 as
adopted by the 59th National Convention. On April 6, 1960, the Director of the
National Legislative Service and the Director of the National Rehabilitation
Service testified before the Special Subcommittee of the House Committee on
Veterans Affairs in opposition to proposals to establish a Court of Veterans
Appeals or otherwise permit judicial review of decisions of the VA Board of
Veterans Appeals.
In August 1960, the 61st National Convention referred Resolution 27 favor-
ing judicial review, - Resolution 224 opposing judicial review, and Resolution 254
supporting judicial review, to the Commander in Chief for study and recom-
mendations by a special committee to be appointed by the Commander in Chief
and to report to him at his discretion.
The special committee convened in Washington, D.C., at our Memorial Build-
ing on December 15 and 16, 1960. The committee arranged in advance to have
1916 JUDICIAL, REVIEW OF VETERANS' CLAIMS

a battery of pro and con witnesses or rather representatives, appear before the
committee. Thus, the pro's and con's were set forth in ample and clear fashion,
each committee member having the opportunity to ask questions of every kind
and nature, pertaining to the subject at hand. This method of reviewing and
studying the question consumed a full day. The next day, the committee dis-
cussed, in great detail, the question "Shall the Veterans of Foreign Wars endorse
and support legislation which will provide for the establishment of a Federal
Court to review disallowed cases of the Board of Veterans Appeals." It was
honestly felt that the matter was of such prime importance that additional
study time was necessary; that is, a final conclusion should not be reached on
our last meeting date. However, ample time existed for general and specific
discussion. The committee adjourned with the agreement that each individual
member would go home with the problem, give it minute individual study and
then report his conclusions and vote to the chairman.
In due time questionnaires were prepared and sent to each committee member.
A full report has been received from each member. By a decided majority count
of 9 to 1 the special study committee recommends to the commander in chief
and to our great service organization that the Veterans of Foreign Wars of the
United States continue to vigorously oppose the establishment of a Federal court
to review veterans' claims.
The committee recognizes and appreciates the fact that a Federal review court
of this nature could render some real service to some veterans or dependents,
but earnestly feels that the good could very easily be outweighed by the un-
favorable. The Veterans of Foreign Wars has long favored the single agency
concept which imparts and charges the Administrator of Veterans' Affairs with
complete responsibility for administering laws, enacted by the Congress of the
United States, providing gratuitous benefits for veterans and their dependents.
It is believed that the establishment of a special court would violate this princi-
ple, and would place on the Veterans' Administration an administrative burden
out of proportion to the good that might be achieved. The committee contends
that the establishment of a special court would be the first step of encroachment
upon the single agency concept. The veterans and their dependents can best be
served by maintaining the Veterans' Administration as the one and only agency
for dispensing the aforementioned benefits. Another committee argument, for
the single agency concept, was the creation of experts in the field by that agency,
thus problems therein have the benefit of expert knowledge.
Tour special study committee believes and contends that the continuation of
our present rather liberal rules of proof for basic adjudication would be seri-
ously jeopardized. The Veterans' Administration would be forced, by the opera-
tion of a special Federal court, to adhere to and be governed much more strictly
by rigid rules of evidence, which is not now being done. The special court would
become the higher body, of all. Thereafter and thenceforth, the lower body,
being the VA itself, would respond to the rules and dictates of the higher body.
This would, of certainty result in a change in the adjudicative processes of the
Veterans' Administration. The study committee feels a rigidity would be built
into the whole adjudicative process that would inevitably cause claimants to
suffer from that rigidity and from the lack of flexibility. A gradual restriction
of rights would then follow. VA policies would be affected tremendously. Con-
sistent allowances by a special court might result in VA liberalization, but, on
the other hand, consistent denials by the court might, in effect, cause restriction
on liberal VA policies. Thus, many, many claimants might suffer whereas only
a few have been benefited.
The special study committee also concluded that the establishment of the court
would entail great cost and expense which would have to be borne by the tax-
payers. Consequently, actual benefits could very easily be diminished in order
to include this additional cost in the Federal budget insofar as the realm of
veterans is concerned.
And, too, the claimant veteran or dependent would be faced with considerable
personal expense in having his case presented to a special court. The great
majority of veterans do not have the financial means to defray the costs of a
judicial review of their claims. The committee concludes that only recognized
attorneys would be allowed to practice and present claims before a special court.
This would entail expenditures for fees by veterans and their dependents, for
which a great majority of whom would not be financially able to provide.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1917

It was further concluded that today the Veterans' Administration operates

under an administrative scheme which admits nonjudicial matter, highly favor-
able to the veteran. It is not believed that the Federal Rules of Civil Procedure
would be abandoned in order to get before a special Federal court precisely the
same case record which is now being placed before the Veterans' Administration
and accepted. Should a special Federal court be established the Board of Vet-
erans Appeals would, in effect, start becoming judicial itself. This would mean
that BVA decisions would be judicially formed and more matters would be re-
stricted. Petty judiciary would become the basic foundation of the Board of
Veterans Appeals, rather than the general Administrator theme. Eating boards
and the Board of Veterans Appeals now operate in informal fashion. Your
committee believes that to be effective and equitable, an appellate system must
be informal, uncomplicated by complex procedures. And all of this informality
would be changed by the effect that a Federal court would have upon a body,
the Veterans' Administration, operating below it.
Your study committee also looked with great favor upon the question of
flexibility. At present, the Administrator of Veterans' Affairs has broad author-
ity to interpret the law and to modify that interpretation when he is convinced
of the necessity to do so. An interpretation of law by the Federal court would
be final. Your special study committee feels that such a rigid method of opera-
tion would be less desirable than the existing one, and would ultimately result
in inflexibility.
I t is the opinion of your study committee that the organized bar associations
would protest and vigorously oppose the appearance of service organization rep-
resentatives before a court and would proclaim such to be an unauthorized
practice of law; the present restriction of $10 for attorney fees would surely be
removed.
The study committee does not believe that there is any basis for anticipating
that a Federal court would be more liberal than the present Board of Veterans'
Appeals. Under present adjudication of claims the Board of Veterans' Appeals
is most liberal in granting requests for reconsideration. The creation of a spe-
cial court for review would result in a decided decrease in the allowance of re-
quests for reconsideration.
It is also recognized that it would be most difficult to have a judicial review of
a nonjudicial proceeding, in which category veterans' claims fall. The only
feasible judicial review would almost, of necessity, be by trial de novo. The com-
mittee feels that such type of review (de novo) would not be acceptable, because
it actually does nothing more than substitute the judgment of the court for that
of the Board of Veterans' Appeals. This would certainly be inconsistent with
sound administrative law. Sound administrative law provides judicial review
of agency action under a very narrow standard; namely, the court will reverse
the decision or the action of the administrative agency if that action is not sup-
ported by substantial evidence. In the vast majority of decisions with which
there is disagreement it must be admitted that there is substantial evidence to
support the decisions complained of. In fact, in most denied cases it cannot logi-
cally be contended that the Board of Veterans' Appeals decision is contrary to
the preponderance of evidence.
Your study committee also is of the opinion that the doctrine of res adjudi-
cata would operate in the event a special review court were established, and
that such doctrine would serve as a severe loss to the veterans. Presently, cases
are being reopened and even reconsidered upon the submission of new and mate-
rial evidence. The doctrine of res adjudicata would foreclose further judicial
examination of issues which were before the court or of issues which could
have been before the court in a given case even though they were not adjudicated.
The Board of Veterans' Appeals considers nearly 40,000 cases per year. If
most or all persons aggrieved by decisions of the Board of Veterans' Appeals
were privileged to appeal to a special court at a minimum cost, it is logical to
conclude that a large number would do so. The load on the special court would
be tremendous. It is difficult to conceive of a special court of the necessary
capacity to handle these cases in a reasonable time. It is believed that the total
load on the special court would be equal to the total caseload of all circuit courts
of appeals. Governmental cost would be enormous, also.
Precedents laid down by a special court would not only affect the disallowed
case at issue, but would have a decided and telling effect upon the cases, not yet
decisioned, in the rating boards or in the Board of Veterans' Appeals and also in
 1918 JUDICIAL REVIEW OF VETERANS' CLAIMS

the development of regulations and procedures in the Veterans' Administration

itself. The human element, so vital to the veteran, would be lost. Perhaps, even
combat or extrahazardous duty would no longer be considered. All of these
things, your committee feels, would operate as a detriment to the great majority
of veterans. The penalty suffered by a majority would certainly be greater than
the gain to a small minority.
Your study committee commends most highly the study, made by the National
Welfare and Service Committee, of the Veterans' Administration Board of Vet-
erans' Appeals, report of said study filed with the 61st national convention on
August 21, 1960. We concur in the findings, conclusions, and recommendations
of that report.
Your study committee has not attempted herein to enumerate the arguments on
behalf of the establishment of a Federal review court. Suffice it to say that we
appreciate and respect such arguments, but the majority, by a 9-to-l count, are
of the opinion that the contentions heretofore set forth clearly outweigh same, to
the greatest benefit inuring to veterans and their dependents.
In conclusion, your study committee recommends to you that the Veterans of
Foreign Wars neither endorse nor support any proposal to establish a special
Federal court to review disallowed claims made by the Veterans' Administration
Board of Veterans' Appeals.
M r . KORNEGAY. M r . S a y l o r , a n y questions ?
M r . SAYLOR. M r . Stover, M r . J o n e s , i t is a l w a y s a p r i v i l e g e t o
h a v e y o u h e r e even when we d i s a g r e e w i t h you.
F i r s t , let m e ask y o u t h i s question, a n d t h i s question is one of a
f e w t h a t c a m e to my m i n d last n i g h t w h i l e I w a s l o o k i n g over t h e
h e a r i n g s w h i c h we h a d last y e a r . M r . S t o v e r or M r . J o n e s , d o y o u
k n o w w h e t h e r or not t h e V e t e r a n s of F o r e i g n W a r s e v e r passed a
r e s o l u t i o n o p p o s i n g the M i l i t a r y C o u r t of A p p e a l s ?
M r . STOVER. N O ; to m y k n o w l e d g e I d o n ' t believe t h e V F W ever
took a p o s i t i o n such as y o u h a v e s t a t e d . I s t a n d corrected. I a m n o t
positive. M y recollection is we d i d n o t .
M r . SAYLOR. T h i s is a n o r g a n i z a t i o n t h a t h a s j u r i s d i c t i o n t h a t
w o u l d affect m a n y of t h e m e m b e r s of y o u r o r g a n i z a t i o n , w o u l d i t
not?
Mr. STOVER. T h a t is correct.
Mr. SAYLOR. T h e establishment of t h i s c o u r t w a s a basic c h a n g e ,
in the l a w s as t h e y affect t h e m e n a n d w o m e n i n t h e m i l i t a r y service
of o u r c o u n t r y , is t h a t n o t correct?
Mr. STOVER. C o r r e c t .
M r . SAYLOR. H a s y o u r o r g a n i z a t i o n , if y o u k n o w , ever t a k e n a n y
a c t i o n c o n d e m n i n g t h e action of t h e M i l i t a r y C o u r t of A p p e a l s in its
h a n d l i n g of m a t t e r s which h a v e been b r o u g h t before it, if you k n o w ?
M r . STOVER. N o t t o m y k n o w l e d g e , M r . S a y l o r . I d o n ' t k n o w of
a n y . O f course t h e court was j u s t established i n recent y e a r s .
M r . SAYLOR. T h e r e are a n u m b e r of o t h e r c o u r t s of a special n a t u r e
w h i c h h a v e been established by C o n g r e s s f r o m t i m e t o t i m e , such as
t h e C o u r t of C u s t o m s A p p e a l s . D o y o u k n o w w h e t h e r or n o t y o u r
o r g a n i z a t i o n ever took a p o s i t i o n on t h e e s t a b l i s h m e n t of t h a t c o u r t ?
M r . STOVER. I k n o w t h e V F W n e v e r h a d a n y p o s i t i o n w h a t s o e v e r
w i t h r e s p e c t t o t h e C o u r t of C u s t o m s A p p e a l s . W e h a v e h a d positions
o n i m m i g r a t i o n b u t n o t o n t h a t subject.
M r . SAYLOR. F o l l o w i n g t h e e n a c t m e n t of t h e a m e n d m e n t t o t h e
C o n s t i t u t i o n b a c k i n 1913, C o n g r e s s p r o c e e d e d t o p a s s an income t a x
l a w . F r o m t i m e t o t i m e i t became necessary, because of t h e difficul-
t i e s w h i c h citizens h a d w i t h t h e Collector of I n t e r n a l R e v e n u e a n d
h i s a g e n t s t h a t t h e Congress establish a C o u r t of T a x A p p e a l s . D o
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1919

you know whether or not your organization ever took a position with
regard to the Congress establishing that court ?
Mr. STOVER. A S far as I know we never have had any position with
respect to the Tax Court of Appeals.
Mr. SAYLOR. Following the expansion in our Government the
Congress of the United States determined that there were many times
when the Government, in its operations, injured private citizens and
Congress was flooded with requests, particularly to the Judiciary
Committee, for a series of bills to relieve wrongs that had been done
and as a result of this the Congress of the United States established
what some people have referred to as a "citizen's court" or the Court
of Claims, allowing the individuals to sue the Federal Government.
Do you know whether or not your organization ever took a position
with regard to the establishment of the Court of Claims ?
Mr. STOVER. Not to my knowledge.
Mr. SAYLOR. The next question I am about to ask is one that I would
ask you to do some research on and then to submit an answer on be-
cause it is not fair to ask you gentlemen who have not been connected
with the Veterans of Foreign Wars since the establishment of the
Veterans' Administration, so therefore I would ask you to look into
this matter through your files. T h a t question is, what was the posi-
tion of the Veterans of Foreign Wars at the time the Veterans' Ad-
ministration was established as to whether or not they felt its jurisdic-
tion was adequate or whether or not there should be some right of
court review.
Mr. STOVER. I would be glad to do that.
Mr. SAYLOR. Of course that is a matter of history and just for my
own information and for the information of the members of the com-
mittee I would like to have it.
Now some years ago the Congress changed the law with regard to
insurance which members of the military, those who served, or in time
of wrar were permitted to take out and were permitted to carry a
change which Congress enacted at that time, allowing the courts to
review the decisions of the Veterans' Administration.
Can you tell me what the position of the Veterans of Foreign Wars
was with regard to that act ?
Mr. STOVER. I don't know the answer to that. I would have to check
on it, Mr. Saylor. I will be glad to submit it for the record.
Mr. SAXLOR. On page 3 of your statement there appears this
sentence:
The creation of this court would be a basic change in the administration of
veterans' benefits.
Well, it seems, Mr. Stover, I agree with you in the statement that
this would be a basic change, but I certainly do not believe that you
would want to leave the impression with the members of this com-
mittee that the Veterans of Foreign Wars would oppose any basic-
change in the administration of veterans' benefits, if as a result of
actions taken at your annual national convention there were resolu-
tions passed ordering you to come forward and present a change in
the basic law affecting the Veterans' Administration.
Mr. STOVER. Of course, in answer to that question, the position of
the Veterans of Foreign Wars, as I understand it, is we don't see any
1920 JUDICIAL REVIEW OF VETERANS' CLAIMS

need at the present time, that we are satisfied with certain reserva-
tions with the present system and therefore have opposed, really, since
about 1952, consistently opposed the establishment of a court or au-
thority to review Veterans' Administration decisions. That is the
basic philosophy, I think, that is provided in these positions that have
been taken and adopted over the years by our organization.
Mr. SAYLOR. I realize the position you find yourself in as repre-
sentative of the Veterans of Foreign Wars, and the limitations that
are placed upon you and Mr. Jones in your appearance here, so the
next question I am going to ask you, I am going to ask not as repre-
sentatives of the Veterans of Foreign Wars, but just as citizens of this
country who have a deep interest in the affairs of the veterans. Both
of you were in the room when you heard Mr. Nussbaum testify just
before you on the stand. You heard him testify that he has filed,,
during the past year, 75 suits which were affecting national service
life insurance in which the Veterans' Administration has denied relief.
H e has been successful in having the Veterans' Administration over-
ruled by the courts in approximately 90 percent of those cases.
J u s t as individual representatives interested in veterans, do you
feel that Mr. Nussbaum did a good service to 90 percent of the 75
people that he represented in seeing to it that a contract that they
entered into with the Government was kept despite the fact that the
Veterans' Administration said that there was no right of recovery?
Mr. STOVER. I am not acquainted with those cases that he did cite
and describe. Maybe Mr. Jones would have some comment on them.
I am not acquainted with the facts and, of course, I didn't hear the
other side; I just heard the plaintiff's side of those cases. However,
Mr. Jones might wish to respond to your question.
Mr. J O N E S . Mr. Saylor, you asked our opinion on the judicial re-
view of these opinions. As far as I am concerned, the Veterans of
Foreign W a r s did not oppose and does not oppose judicial review of
insurance cases now. We take the view it involves contracts and
also involves other contested contract issues in these cases. I n many
of the cases going to court one will find an action allowing one claim-
ant's claim which would have been a denial of another of the claim-
ant's claims. T h a t is, in my opinion, one of the reasons why the
V A may be more reluctant to make a positive decision in some insur-
ance claims. Sometimes, of course, the V A does make a denial and it
goes to court based on the denial.
I would have to say this, though, that in the insurance cases the
V F W represents we have not found much difficulty in obtaining what
we consider to be justice for rightful claimants. I t is true we don't
represent all, but not many insurance cases we represent have gone
t o court, only a small number. So I believe t h a t it is rather signifi-
cant to point out the merits of rightful claimants.
I would like the record to show I take exception to Mr. Nussbaum's
inference as to the adequacy of our service officers. I think we have
highly adequate service officers over the country and they do a fine
job even though most are not attorneys by any means.
Mr. SAYLOR. This is a matter, once again, of opinion, and Mr.
Jones, we respect you and your opinion.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1921

Mr. Jones, I believe you handled more of the dealings with the
Veterans' Administration than the other gentleman, Mr. Stover; is
that correct?
Mr. JONES. T h a t is correct.
Mr. SAYLOR. D O you have any idea or can you tell the committee
the number of cases that you or your organization represented before
the Board of Veterans' Appeals this past year?
Mr. JONES. I didn't bring with me the exact number. We gen-
erally handle between 400 and 600 per month. T h a t would r u n to
about 6,000 per year, between 5,000 and 6,000. That is just the
number of cases. There are more questions at issue.
Mr. SAYLOR. Since you handle that number of cases you will get
approximately that number of opinions each month; is that correct?
Mr. JONES. Yes; on the average, at least.
Mr. SAYLOR. H O W many dissenting opinions were filed in those
6,000 cases that you had during this past year, if you know?
Mr. JONES. Mr. Saylor, you may remember, of course, I was the
one t h a t brought to this committee the small number of dissenting
opinions over the past. I was concerned about it then and I am now.
Merely because I say the VA system is adequate as a system doesn't
mean I am satisfied yet with all procedures and policies that are
inherent in the system or are there for other reasons.
I have no specific figure but the number of dissenting opinions has
gone u p slightly. I will be glad to furnish a figure to the committee
by correspondence.
Mr. SATLOR. My recollection is that 1 year we had 13.
Mr. JONES. I t averaged 14 over a period of 10 years, 14 per year.
Mr. SAYLOR. Any increase would be marvelous.
Mr. JONES. I t has gone up some on both sides, both allowing and
dissenting. I may say it seems to be by just a few members of the
Board and not often by others. I n other words, it seems to be a per-
sonal matter to a great extent.
Mr. SAYLOR. If the members of this committee, in their wisdom,
decide to report out the bill establishing a court of judicial review for
veterans' cases, do either of you gentlemen want to comment on our
two bills which are basically the same, as to whether or not you feel
we have established proper safeguards in regard to the caliber of the
judges and in regard to the manner in which cases are to be presented
and the remuneration that is to be paid to those who represent claim-
ants before the court ?
Mr. J O N E S . Mr. Saylor, of course, when an organization like ours
testifies against a proposal, it might seem inappropriate to then say
how the proposal should be operated if Congress establishes the court.
1 believe that Mr. Stover and I should obtain approval of our com-
mander in chief before so doing. If you like, we will inquire as to
t h a t approval and if it is obtained we will submit a letter commenting
on the provisions of the proposal even though the V F W opposes the
proposal.
Mr. SAYLOR. I would appreciate it. I know the other members
would for this reason, that your organization, with its membership,
with its interest in the affairs of veterans, has always been very help-
ful to this committee and even though at times we have disagreed, you
1922 JUDICIAL REVIEW OF VETERANS' CLAIMS

have been very helpful and your organization has been helpful in sup-
plying us with your views as to how best to provide for the veterans
of this country. For that we are deeply grateful.
T h a t is all, Mr. Chairman.
Mr. KORNEGAY. Mr. Ellsworth.
Mr. ELLSWORTH. Thank you, Mr. Chairman.
Mr. Stover and Mr. Jones, of course it is always nice to have you
here and have the benefit of your thinking on these things. As you
well know, I am just getting acquainted with this for the first time this
morning.
I want to clear up one thing. You indicated, Mr. Jones, that the
problem that Mr. Nassbaum has spent to much time on, judicial review
of insurance cases, has no relevancy to these bills. Is my understand-
ing correct ?
Mr. J O N E S . The privilege of insurance cases going to court for ju-
dicial review already existed, of course, and these bills will not be
necessary for that purpose, unless there is something else that the
Congress might want to add. One of these bills, I believe, provides
for insurance cases for this special court concurrently with the other
authority. Another proposal has been that insurance cases be ex-
cluded from this court, if I understand, in its discretion.
Mr. ELLSWORTH. Thank you. I have no further questions.
Mr. KORNEGAY. Mr. Stover, I am sure t h a t your organization, like
most organizations in their annual conventions handle resolutions
through the resolutions committee; is that correct ?
Mr. STOVER. T h a t is correct.
Mr. KORNEGAY. After the resolutions committee has considered
and adopted a resolution, it is presented to the membership in general
session and the resolutions are debated on the floor and final action is
taken. Do you recall or have you an independent recollection of reso-
lution 280 which was made back in 1956 at the 1959 convention ?
Mr. STOVER. My recollection is it passed without debate. I believe
they had quite a bit of debate in the committee but by the time it came
to the floor, the differences of opinion were jelled in this resolution and
I believe it passed without debate.
Mr. JONES. I think perhaps I should explain. Resolution 280 was
primarily a resolution recommending that a committee be appointed to
study veterans' appeals. T h a t was its primary purpose. I t said
that following the study the Veterans of Foreign W a r s should continue
the same stand on judicial review or with a comparable stand. That
was primarily to study the Board of Veterans Appeals.
Mr. KORNEGAY. I note, with some degree of interest, the first
"whereas" which states :
Whereas during the last 25 years, there has been no improvement in the
procedure under which the Board of Veterans Appeals is authorized to function
making it evident that some change for the better is warranted and necessary.
Mr. J O N E S . Yes, sir.
Mr. KORNEGAY. T h a t statement in itself would be considered as
somewhat of a criticism.
Mr. J O N E S . Of the Board of Veterans Appeals ?
Mr. KORNEGAY. Yes, sir.
Mr. J O N E S . N O question about it.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1923

Mr. KORNEGAY. Then you go on to state:

Whereas resolutions have been submitted to this convention calling for a
correction of the present situation in regard to personnel and decisions of the
Board of Veterans Appeals.
I n other words, I gather, from the position of the Veterans of
Foreign Wars, that you feel that by resolution, calling to the attention
of the Board of Veterans Appeals the areas or fields in which you
disagree, that that is sufficient to correct any inequities that might
exist, is that correct, sir ?
Mr. JONES. We are not wholly satisfied with the V A acceptance of
our recommendations to date. They have implemented several of
them, at least to some extent. We submitted 14 recommendations and
those were furnished to this committee. We testified on the subject
of judicial review in 1960, on dissenting opinions and workloads of
the Board, reconsideration of requests, principles of reasonable doubt,
of presumptions of soundness, and related matters.
Mr. KORNEGAY. W h a t has been the result ?
Mr. J O N E S . There has been considerable improvement in several
areas. Reconsideration of requests has been the most dramatic where
there has been an augmenting of reconsideration by three more mem-
bers in reviewing a denied appeal decision. T h a t gives some new
thinking and provides a 6-nian decision and sometimes a 9- or 12-man
decision. We think, of course, dissenting opinions are still too few.
We think the workload per day is still too high. I am distressed
somewhat, Mr. Chairman, by the knowledge t h a t next year the Board
of Veterans Appeals proposes to add a number of employees, if the
budget is approved as presented, a rather large number of new em-
ployees but no additional associate members. T h a t disturbs me
greatly. I think added personnel on the Board should involve some
additional associate members, to add to this staff which is actually
responsible for the decisions.
Mr. KORNEGAY. I n other words, I gather from what you say, Mr.
Jones, that notwithstanding certain improvements you are still not
satisfied with these ?
Mr. JONES. I am not satisfied with everything proceduralwise or
policywise. Of course judgmentwise one can always differ and one
might differ with some court decisions. This will always exist.
Mr. KORNEGAY. Do either of you know of other agencies of the Gov-
ernment that handle judicial or quasi-judicial functions that do not
have some means of judicial appeal 1
Mr. JONES. We deal with some cases before the Bureau of Employees
Compensation and Social Security Appeals Council. There is, how-
ever, judicial appeal, I think, of those decisions.
Mr. KORNEGAY. There is judicial appeal from all of those?
Mr. JONES. I think there is. I think Mr. Saylor asked about the
Veterans of Foreign W a r s ' stand on certain appeals and, as we pointed
out, we had no stand on those courts and don't now. I think it is
because the Veterans of Foreign Wars directs its attention primarily
to the affairs of veterans, although military justice is a proper con-
cern. The V F W will testify on this subject in the Senate sometime
within the next several weeks.
Mr. KORNEGAY. Any questions, Mr. Saylor?
 1924 JUDICIAL, REVIEW OF VETERANS' CLAIMS

Mr. SAYLOR. Nothing further.

Mr.KORNEGAY. Does counsel have any questions ?
SUBCOMMITTEE COUNSEL. Mr. Jones, without relating the various
objections t h a t the Veterans of Foreign Wars has made to the estab-
lishment of a court of system of judicial review as provided by these
bills, I would like to ask if, in your experience, you have noted the
matters to which you object to existing in the present system of
judicial review of insurance claims.
Mr. J O N E S . We have no criticism of the judicial review of insurance
claims. W e think, of course, there is more of a logical basis for it be-
cause of the contractual nature of the program.
SUBCOMMITTEE COUNSEL. Well, the objections you do point out to
the establishment of judicial review of claims as provided by these
bills, you have not noted any of those in the present system of judicial
. review of insurance claims?
Mr. JONES. I don't think so. Of course, judicial review of insur-
ance claims usually is premised on one particular aspect of the claim
and usually on limited evidence in the folder, a beneficiary change or
alleged beneficiary change. When you get into these matters you
may have evidence with a folder this thick.
SUBCOMMITTEE COUNSEL. Well, I don't understand just what signifi-
cance you attach to the fact that insurance is a contract while the
•claim for disability compensation is not. Can you explain that a
little more ?
Mr. JONES. Well, of course, primarily I think it is premised on the
belief that insurance, being a contract, the parties perhaps should
have judicial review privilege to insure protection of their contrac-
tual rights.
SUBCOMMITTEE COUNSEL. Well, the terms of the contract are estab-
lished by statute just the same as the disability compensation, is that
not correct ?
Mr. J O N E S . T h e basic legal terms, yes. Of course, you have in-
volved certain acts by the insured, certain alleged acts by the insured's
beneficiary change. You do get into evaluation of evidence which is
not under the contract.
SUBCOMMITTEE COUNSEL. NOW, on the insurance claims in which the
Veterans of Foreign Wars represents the claimant before the Vet-
erans' Administration, could you give us an estimate of the number
of such claims or the percentage of such claims in which you are not
successful ?
Mr. JONES. I think I can send that over, Mr. Downer. The num-
ber of insurance claims which we represent which later are appealed
to the courts is insignificant. This may or may not mean that the
decision is proper in every other case. I won't argue that necessarily.
A t least the parties concerned have decided not to appeal to the courts
on most of the decisions.
SUBCOMMITTEE COUNSEL. Could you make an estimate at this time
as to the number of noninsurance claims in which you represent the
claimant before the Veterans' Administration where you are not suc-
cessful.
Mr. JONES. You are speaking about the Board of Veterans Appeals
primarily now ?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1925

SUBCOMMITTEE COUNSEL. Yes.

Mr. JONES. Our success is usually 16 percent of the actual decisions
by the Board on the appeal claims. Of course, as you know, there
are 10 or 12 percent remanded and a lot of those are allowed without
coming back.
Now, we select from the denied decisions a certain number to submit
for reconsideration each year. T h a t usually runs around 70 or 80.
We usually win about 40 percent of those. Those cases submitted
for reconsideration usually involve decisions in which we rather
strongly disagree. There may be some other decisions denied that we
just as strongly would disagree if we, of course, could talk to the
claimants ourselves.
SUBCOMMITTEE COUNSEL. Would it be too much trouble for you to
supply for the record a percentage of claims in which you have repre-
sented the claimants before the Board of Veterans Appeals during
the last calendar year on insurance claims and on other types of claims,
with a statement of the percentage of cases in each class in which you
are successful or unsuccessful ?
Mr. JONES. I think we can do that. I might mention, too, I am
now making a study of our appellate work in detail. I t may not be
through in time for this study, but I will submit a copy if it is.
Mr. KORNEGAY. Mr. Stover, do you have something?
Mr. STOVEH. Before I close, Mr. Chairman, I would like to comment
on bills H.R. 852 and 857, neither of which deal directly with the
establishment of a court of appeals. The Veterans of Foreign W a r s
does not have an official position, a position with respect to either of
those proposals in those two bills. One of them I believe would set
up a medical board or, rather would permit the Veterans' Administra-
tion to refer certain cases to a medical board and handle them outside
the Veterans' Administration at their discretion. We do not have
any position on that or on the other bill which is H.R. 857, no official
position.
Mr. KORNEGAY. You have not considered them at all or have not
had an opportunity to consider them or is it that you have considered
them and have taken no position ?
Mr. STOVER. O u r organization is bound by the resolutions adopted
at our national conventions. I n addition it means no official body,
such as the national council of administration or the commander in
chief have officially considered these proposals and handed down
a decision for and on behalf of the Veterans of Foreign Wars.
Mr. JONES. I can offer observations on H.R. 857. As you know,
some officers are required to do that, to submit a statement of facts in a
certain number of cases. While those statements would probably be
helpful to the VA in the cases we presented, we thought they were
wholly inadequate standing alone and we would be opposed to stating
that the Board of Appeals should rate those cases based just on the
statements of fact. We think the Board should look at the evidence
in the folders, which they did, of course, during that test period.
Mr. KORNEGAY. Mr. Saylor.
Mr. SAYLOR. Mr. Jones, with the innumerable cases in which you
have represented claimants before the Board of Veterans Appeals, I
1926 JUDICIAL REVIEW OF VETERANS' CLAIMS

am sure innumerable cases have been denied because the Board has
stated there has been no evidence to support the position which you
have taken or which the veteran has taken and where it has been
pointed out wherein the evidence is lacking. I am sure that some of
your service officers have gone out in the field and have contacted in-
dividuals and have gotten sworn statements and have passed on this
innumerable times and the Board of Veterans Appeals have reconsid-
ered these cases in light of the additional evidence which was taken. I
can assure you your records are replete with the statement which the
Board of Veterans Appeals makes, which is that "the evidence is cumu-
lative." Now, would you like to comment on when the accumulation
becomes the preponderance of evidence which Congress never said was
necessary ? I t just said that a reasonable doubt was to be resolved in
favor of the veteran.
Mr. JONES. Yes, we realize, of course, that a rating board, whether
it be in the V A or in the field, might continue to rule that the evidence
is not sufficient to merit an allowance. We might feel otherwise..
T h a t perhaps might always be true, but the thing we object to, beyond
the adequacy of judgment, is the practice sometimes of passing it
off without being specific as to the reasons for not giving it sufficient
credence. I n other words, a statement to the effect that the affidavits
of Brown and Jones were considered, nothing else. That, to us, is
grossly inadequate. T h a t happens not only in the Board of VA
sometimes but happens in the field stations ratings cases. We feel
that they should always be specific in expressing their reasons for
not giving adequate credence to affidavit evidence.
Mr. SAYLOR. If we had a court it would take care of that.
Mr. KORNEGAY. Are there any further questions?
Mr. Patterson.
COUNSEL. Mr. Chairman, I think for the record it should be stated
in connection with H.R. 852, which proposes to set u p independent
medical panels, that the Veterans' Administration ultimately agreed
to submit 28 cases to independent medical experts to get their ap-
praisal of the medical aspects of the case. The V A had been requested
to conduct a pilot study of 100. There is one case already decided
which is particularly significant. This case has been before the
Board of Veterans Appeals five times. The case originated in 1942.
I t had to do with whether or not a spinal anesthesia administered in a
VA hospital resulted in paralysis. I am happy to say the Board has
now granted that case based on a decision or a finding from an inde-
pendent medical expert.
The other case involves a decision which the Board of Veterans
Appeals had diagnosed as "alcoholism" but the independent medical
expert found was "epilepsy."
Mr. KORNEGAY. Thank you, Mr. Patterson.
Are there any further questions or statements ?
Mr. ELLSWORTH. N O .
Mr. KORNEGAY. NOW, we have one other witness who is with us to
testify this morning, but I am afraid the hour is approaching 12
o'clock and I feel that, Mr. Freudenberger, we hardly have time to
p u t your statement into the record, and if it is convenient with you,
would you mind coming back tomorrow morning at 10 o'clock?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1927

Mr. FRETJDENBERGER. I will be glad to do it.

Mr. KORNEGAT. Thank you. The meeting now stands adjourned
until tomorrow morning at 10 o'clock.
(Whereupon, at 11:55 a.m. the committee recessed to reconvene at
10 a.m., Wednesday, February 21,1962.)
 JUDICIAL REVIEW OF VETERANS' CLAIMS

WEDNESDAY, F E B R U A R Y 21, 1962

HOUSE OF REPRESENTATIVES,
SPECIAL SUBCOMMITTEE OF THE COMMITTEE ON
VETERANS' AFFAIRS,
Washington, D.C.
The subcommittee met at 10 a.m., pursuant to recess in room 356,
Old House Office Building, Hon. Horace R. Kornegay (chairman of
the subcommittee) presiding.
Mr. KORNEGAY. The subcommittee will come to order.
Our first witness this morning is Mr. Elmer M. Freudenberger,
national director of legislation of the Disabled American Veterans
Mr. Freudenberger, you come right up and bring any associates
you might have with you. We will be glad to have them if you will
introduce your associates.
STATEMENT OF ELMER M. FREUDENBERGER, NATIONAL DIRECTOR
OF LEGISLATION, DISABLED AMERICAN VETERANS, ACCOM-
PANIED BY IRVING PELTZ, NATIONAL SERVICE DIRECTOR, AND
FRANK G. WOOD, ASSISTANT NATIONAL SERVICE DIRECTOR FOR
CLAIMS
Mr. FREUDENBERGER. Mr. Chairman and members of the subcom-
mittee, it is a pleasure to have this opportunity to attend his open
hearing before your subcommittee and to testify in favor of a sound
and workable bill that would enable veterans and their dependents
to take their cases to court after adverse decisions have been rendered
by the Veterans' Administration Board of Veterans' Appeals.
First, however, I wish to introduce my associates who are with me
today and who will be glad indeed to answer anj' questions pertain-
ing to claims as you may desire.
On my right is Mr. Irving Peltz, D A V national service director,
and on my left is Mr. F r a n k G. Wood, assistant national service direc-
tor for claims of this organization of the wartime disabled.
National Commander Francis R. Buono, who appeared before your
full committee on February 8, 1962, is unavoidably detained and re-
grets that he cannot be in Washington to meet witli you at this time.
I do not have to remind you of the hearings on judicial review legis-
lation that were held before a special group of your committee in
April and May 1960. The mass of testimony, both pro and con, con-
stitutes one of the largest congressional committee reports eA'er assem-
bled, especially by the Committee on Veterans' Affairs, in my ex-
perience.
1929

800S2—62 14
1930 JUDICIAL REVIEW OF VETERANS' CLAIMS

Your committee, under the able chairmanship of the Honorable

Olin E . Teague, reported out a bill, which the committee rewrote on
t h e basis of the evidence adduced, but that bill was passed over on the
floor after it was placed on the Consent Calendar. The final session
of the 86th Congress adjourned sine die shortly afterward and upon
the convening of the new 87th Congress we and other interested pro-
ponents introduced new bills on judicial review which we hope will
experience a kinder fate than met with in years gone by.
The D A V bill, introduced by Hon. John P . Saylor, of Pennsyl-
vania, is H . B . 775. I t would establish a five-judge court to review
decisions of the VA Board of Veterans' Appeals, provided a timely
appeal is filed. Other provisions of our bill relate to jurisdiction
including authority to deny court review, make provision for staff
assistance, prescribe fees, enable the special court to prescribe quali-
fications for attorneys, to establish administration and procedure of
the court, and last, but by no means least, among the bill's major items,
it authorizes the court to appoint not more than 50 commissioners to
assist the court in its functions. Other administrative provisions are
included relating to the commissionership section.
Obviously, in reviewing the terms of the bills on the general subject
of judicial review, it is noted that some differ from others on the con-
cept of how to effectuate to best advantage the idea of allowing dis-
satisfied veterans a court appeal from final VA decisions.
When we appeared before the Mitchell subcommittee on April 6,
1960, we were partial to a bill proposing the establishment of a spe-
cial court but we did not urge at that time the adoption of the com-
missionership provisions. However, since listening to and studying
the evidence in support of that proposal, we came to the conclusion
that such a plan is necessary if we are to avoid excessive congestion
of the docket of the special court or, if the regularly constituted U.S.
district courts are given jurisdiction, of their already crowded dockets.
So, for that reason, our bill, H."R. 775, carries the provisions referred
to above, as do some of the other bills before this Congress.
Perhaps the workload of veterans' cases, involving court appeals,
will not be as great as expected, but to our way of thinking the best
way to approach the whole problem is (1) to authorize a special
court and (2) to allow it the screening assistance of commissioners.
The bill your committee reported out in the 86th Congress included
both features, and we think this is eminently proper and sound.
As for those opponents of any judicial review legislation, I must
say, with all respect, that we do not agree with them or their thinking
and we most earnestly take issue with any statements to the effect
that if the Congress enacts a judicial review measure the veterans
and their dependents will be worse off than before. We just do not
subscribe to that philosophy. We know that it has long been the
policy of the Government not to authorize suits for compensation
and pension but we believe that in all equity an independent judicial
review is desirable in certain cases based upon the long experience
of the D A V in assisting veterans and their families with tlieir claims
throughout the Nation and here in Washington, D.C.
Under present Veterans' Administration procedure the same agency
that renders the initial and subsequent decisions at the lower level
also has the final authority to determine the questions in issue.
 JTJDICIAL REVIEW OF VETERANS' CLAIMS 1931

I n England there is a Pensions Appeal Tribunal which was es-

tablished as the result of unsatisfactory administrative handling of
veterans' appeals. Numerous administrative decisions of various
Government agencies in our own country are subject to court review
•on appeal.
Disputes are submitted to courts because of their impartiality in
considering and determining the issues involved. Can it be said that
administrative determinations enjoy equal confidence?
When representatives of the Disabled American Veterans appeared
before the Mitchell special subcommittee on April 6, 1960, and gave
testimony in support of judicial review legislation, we appended to
our statement as p a r t of the hearing record, summaries of some rep-
resentative cases which, in our opinion, were not equitably and hu-
:manely adjudicated by the VA, including the Board of Veterans'
Appeals. We are now attaching to this statement some additional
•.summaries of individual cases in which the D A V holds powers of
attorney. These individual instances and those reported in 1960
could be multiplied manifold but we do not desire to tax your pa-
tience unduly and we believe that these cases do serve as a basis for
our firmly held opinion that veterans should have access to the Fed-
eral court to correct what they deem injustice and to afford them the
peace of mind that comes with knowing there is a higher and im-
partial tribunal to which they can appeal, regardless of the final
• outcome of such venture.
I t is believed unnecessary and wasteful of your time to set forth
in great detail all of the arguments previously presented to your
• committee by the D A V and other proponents of this desirable legis-
lation. We will endeavor to answer all questions you may direct
•our way or to supply additional data within our knowledge and
experience.
Now, we come to our comments on the several bills you are con-
sidering today, partially or wholly devoted to veterans' mattei-s other
than the principal subject of this hearing. These bills are H.E. 852,
H.R, 857, and sections of H.R. 6723.
H.R. 852 would authorize the Administrator of Veterans' Affairs
to establish medical advisory panels to resolve conflicts of evidence
in questions involving service connection of disabilities or deaths.
' The Administrator now has ample authority under the broad powers
conferred upon him by law to resort to expert medical opinion to
resolve difficult or troublesome medical questions, employing con-
sultants within and without the VA for that purpose. To permit
the medical experts to pass upon the basic question of service con-
nection, as proposed by this bill, is a far-reaching departure from
present procedure with which the D A V is not prepared to concur.
The VA has a system, as you know, under which rating boards
at the regional office level, each composed of three members including
• one physician, all experienced and trained in applying the provisions
• of law, including the presumptions, relating to service connection,
determine the service origin or aggravation of disabilities from
which the claimants are suffering. The decisions of the rating
boards are subject to timely appeal and review by the VA Board
-of Veterans' Appeals. To have outside medical consultants, how-
1932 JUDICIAL REVIEW OF VETERANS' CLAIMS

ever well versed they may be in their chosen fields of medicine, render-
decisions of rating character, with all the weight such decisions would
inevitably acquire as precedents in the adjudication of claims, might
well do violence in some instances to the rating standards that now
make for uniformity, and would contribute in some degree to con-
fusion in the V A rating processes.
I n connection with the foregoing we have in mind the special p r o -
visions of law and the presumptions followed by the VA in determin-
ing entitlement to service connection or the reverse which often take
the decisions out of the purely medical concept of "black" or "white.""
Obviously, the busy top experts in the various special fields of medi-
cine could not be expected to be well versed in the intricacies of the
Federal statutes (title 38, United States Code) and the V A regula-
tions and schedule upon which determinations as to service connec-
tion are based in relation to the medical and other facts in each indi-
vidual case. So, for these reasons and others that could be cited,,
including the attitude of the American Medical Association toward
the presumptions, as made a part of the record in past hearings
before your committee, the D A V does not concur in the extension of
the rating authority, as proposed in H.R. 852.
COUNSEL. Mr. Chairman, may I ask a question at this point?
Mr. Freudenberger, if the present authority of the Veterans' Ad-
ministration in this field of medical expert testimony would be
broadened to permit the obtaining of independent medical opinions
on request of the veteran who has had his claim denied and make
that finding mandatory upon the Administrator, would the DAV"
have any objection to that ?
Mr. FREUDENBERGER. I would like to have Mr. Peltz's opinion on
that question if t h a t is satisfactory.
Mr. PELTZ. N O ; I don't think the D A V would have any objection
to any access that the veteran would have in obtaining an opinion
that could reverse an adverse decision.
COUNSEL. Your objection is the determination of service con-
nection by an outside physician. As long as the doctor was giving ex-
pert opinion on the medical aspect the D A V would have no objection to -
that procedure after his claim has been denied ?
Mr. PELTZ. T h a t is right.
COUNSEL. Thank you.
Mr. FREUDENBERGER. This organization can appreciate the purpose
to be served by H.R. 857 in requiring by law that those cases appealed
to the VA Board of Veterans' Appeals shall contain a brief statement
of the facts of the case appealed, with a citation and application of the
law, together with the recommendations of the VA office from whose -
decision appeal is taken.
We definitely disagree with the provision of the bill to the effect that
if the appellant, his agent, or attorney, does not express concurrence in
the facts as set out in the statement furnished him, or does not file ex-
ceptions, within the time specified "the appeal shall be dismissed." I n
such instances we believe that the case, if otherwise in order, should re-
ceive appellate consideration and disposition regardless of the nonre-
ceipt of a response from the appellant, his agent or attorney, as con-
templated by the bill. A memorandum could be placed in the file, by
the office of original jurisdiction, and the appeal procedure followed.
 JUDICIAL REVIEW OF VETERANS' CLAIMS ] 933

t h r o u g h to its ultimate conclusion despite the absence of a statement of

concurrence or exception. I t would be reasonable to proceed on the
assumption t h a t concurrence is implied in the absence of evidence to
the contrary.
COUNSEL. Mr. Chairman, again, if I may interrupt there?
Mr. KORNEGAY. Yes.
COUNSEL. Mr. Freudenberger, again you have no objection to a
statement of facts. I s it concurrence here you object to, nothing else?
Mr. FREUDENBERGER. T h a t is correct. H.R. 6723, in addition to par-
agraphs on judicial review, contains sections on evidence and the ade-
quacy thereof to support findings of service connection, a subject in
which the D A V is always interested. With reference to the provisions
relating to preexistence or nonpreexistence of a disability and the proof
required to allow favorable adjudicative action, these provisions would
clearly seem to be liberalizations of the present criteria. However, we
have our own D A V bill before this Congress on this general subject.
I refer to H.R. 109, a holdover from the 1st session, 87th Congi'ess.
We thank you again for this opportunity to be heard and hope we
have contributed something worthwhile to your deliberations.
I f there are any questions we are at your service.
Thank you.
Mr. KORXEGAY. T h a n k you, Mr. Freudenberger. I f there is no ob-
jection, the cases you have furnished will be placed in the record at
this point.
Case No. 1. Restoration of service connection for coronary artery disease with
angina pectoris
This case Involved restoration of service connection for coronary artery dis-
ease with angina pectoris. Veteran served from October 14, 1942. to January 28,
1943. When inducted into service a medical examiner for the local draft
board recorded a finding of heart condition, diagnosed as auricular fibrillation.
This was back in October 1940 and it was stated that the veteran could not
indulge in exercise and that he still had pain in the heart area.
Following approximately 2 months of active service in the infantry, the veteran
was hospitalized with a complaint of weakness and partial collapse. He was
eventually given a discharge from service because of heart condition.
On the basis of the evidence of record, the board of original jurisdiction
granted service connection for coronary heart disease with angina pectoris.
On a later review, this action was held to involve a clear and unmistakable error
and the service connection was severed.
The reason for the severance of the service connection was that there was no
evidence of increased disability or aggravation during service. We believe that
this reasoning is highly speculative in view of the history of this veteran before
service. Certainly, it is a question upon which reasonable men could differ.
The veteran was placed in the infantry and underwent infancy basic training
for 2 months and in view of the heart condition that existed in 1940, it would
certainly appear to us that aggravation would have to be conceded in view of
the rigorous type of physical exertion the veteran necessarily underwent in
connection with infantry basic training.
We believe that a judicial review of a case of this type would certainly result
in the application of equity which was wholly lacking in a determination of the
Board of Appeals in denying restoration of service connection for the veteran's
heart condition.
•Case No. 2. Service connection for coronary occlusion as secondary and, part of
the service-connected chronic bronchial asthma
The question at issue before the Board of Appeals was service connection for
•coronary occlusion as secondary and part of the service connected disability of
•chronic bronchial asthma. The veteran wras discharged from service because of
bronchial asthma for which a compensable rating was granted by the Veterans'
Administration. There was no evidence of a heart condition during service.
3934 JUDICIAL REVIEW OF VETERANS' CLAIMS

The veteran was hospitalized for a coronary occlusion in October 1960, approxi-
mately 5 ^ years after discharge from service. His private physician has sub-
mitted medical evidence to the effect that in this case there was relationship'
between the asthma and organic heart disease. The private physician has sub-
mitted 3 statements in this case, including one which refers to a relationship-
between heart disease and asthma as recorded in medical text books on this
subject. Our representative, in appearing before the Board of Appeals in this-
case, also referred to medical text books concerning the relationship between
allergy and organic heart disease.
In its decision, the Board of Appeals simply stated there was no evidence of
heart condition during service and that in their opinion there was no direct
relationship between the condition of asthma and the heart condition.
We believe that if this case had been subject to judicial review an opinion
would have been presented for greater exploration than was afforded by the-
Board of Veterans Appeals as to the question of relationship between a cardiac
condition and asthma as shown in this case.
It should be noted that a t no time was it contended by the veteran, or his
representative, that a heart condition existed during service, yet the Board of*
Appeals uses this as the main reason for denying the appeal. Greater latitude-
would be afforded a judicial review authority in exploring the possible relation-
ship and thus absolving all reasonable doubt in favor of the veteran.
We believe had this case been subject to judicial review, the veteran would
have been granted service connection for his cardiac disability.
Case No. 8. Restoration of special monthly compensation for los» of use of the
left foot
During service the veteran suffered a penetrating shell fragment wound to
the skull, resulting in a post-traumatic hemiplegia and paralysis. He was-
originally granted special monthly compensation for loss of use of left foot and
left hand. However, on a Veterans' Administration examination it was deter-
mined that he no longer met the Government criteria for the loss of use of left
foot, although he was still entitled for loss of use of left hand. It is shown that
the veteran must use an elastic brace on the left angle to provide support and
strength for the ankle. His gait is slow and typically spastic. There is moder-
ately weakness of the left lower extremity.
In his appeal the veteran complained that he was not examined by a neurolo-
gist but by a general practitioner and that this examination resulted in his losing'
the special monthly award for loss of use of the left foot. This veteran appeared
before the Board of Veterans' Appeals personally in connection with his appeal.
The representative pointed out that, in walking, this veteran had developed a
swinging gait of the left leg and that the knee of the left leg did not bend when
he walked.
The examination that was used to reduce this veteran's compensation made no
reference to his ability or inability to walk, nor did the examiner state suffi-
ciently the degree of disability in order for a proper determination to have been
made.
It is believed this is a classic case to illustrate the need for a judicial review
authority. For all practical purposes this case clearly shows that the veteran*
has very little use of his left leg. We further believe that the evidence of
record does not support sufficiently a finding that loss of use of leg does not exist..
Certainly the service records clearly indicate entitlement to the special monthly-
award ; and, when comparing the evidence upon which the award was granted"
with the evidence upon which the award was reduced, one cannot help but agree
that a further examination should have been ordered and a more careful review
of the condition should have been made before putting into effect the severe-
reduction in the veteran's compensation.
We feel that, had this case been subjected to a judicial review, the veteran-
would have maintained his special compensation for loss of use of the left leg.
Case No. 4- Service connection for the cause of death attributed to cardio-
vascular collapse
This is a most unusual case and clearly illustrates the need for a judiciary
review board which would impartially review the evidence of record in reaching
a determination.
The veteran was service connected for asthma. He was under the treatment
of a private physician for a number of years prior to his death. The veteran
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1935

had suffered from the condition of asthma and bronchitis since 1900. The death
certificate clearly states that in the opinion of the attending physician the veteran
died of a heart attack due to hypertensive arteriosclerotic heart disease due to
chronic bronchitis. The physician stated that bronchitis contributed to the
cause of death.
The veteran served from 1899 to 1901 and the clinical records show treatment
for bronchitis during that time. In an additional statement submitted by the
private physician he stated that the veteran suffered from a chronic heart condi-
tion complicated by chronic bronchitis and frequent attacks of bronchial asthma.
The last few months of his life the bronchitis became more severe and brought
about cardiac decompensation until the last attack brought on his death. This
case was submitted for a medical advisory opinion to the Central Office of the-
Veterans' Administration and an opinion was obtained from the Director of the
Outpatient Clinic of the Veterans' Benefits Office in Washington, D.C. In his
opinion the Chief Medical Director attacked the validity of the private physi-
cian's records and made statements reflecting upon the ability of the doctor ta
properly diagnose this case. The doctor had treated the veteran for many years
prior to his death and was in a position to observe the veteran and the progress
of his disease.
I t is believed that the opinion of the Chief Medical Director had a marked
influence on the decision of the Board of Appeals, and it is also believed this-
case certainly should have been submitted to an impartial authority to review
all the evidence of record to resolve all reasonable doubt in behalf of the widow-
in her claim for benefits.
It is also believed that, had a judiciary review authority assumed jurisdiction
of this case, the widow would have been allowed service-connected death bene-
fits, as the evidence submitted by the private physician would certainly indicate-
that this would have been a just decision.
Case No. 5. Entitlement to special monthly compensation of one eye
The question at issue in this case is the entitlement to special monthly com-
pensation of one eye, having only light perception.
The records indicate the veteran, at one time, was drawing this benefit for
blindness of one eye until April 24, 1960. Service records reveal a chip of steel
was imbedded in the right eye and he could see upper field and his vision was-
becoming progressively more blurred. The foreign body was found on the retina
near the disk and it had perforated cornea, iris in the lens of the upper nasal
quadrant and was surgically removed. Vision at that time was 7/200. Sub-
sequently, a traumatic cataract was formed.
On the hearing before the Board of Veterans' Appeals, the veteran made the
following statement:
"What I can see from the right eye is not clear. Whatever it may be, it is-
only halfway. If I were to look directly at you, I can see the top of your nose
and your eye; but, moving something in front of me, it is just blurred. I cannot
make out an object."
Due to the severity of his right eye disability, if the veteran would ever sus-
tain an injury to his left eye, he would be, for all practical purposes, totally-
blind.
This case was denied by the Board of Veterans' Appeals.
We feel if this ease was presented to an impartial, unbiased judicial body
they would have granted the veteran the benefits he was seeking.
Case No. 6. Service connection for the cause of death
The veteran entered the service in May of 1943 and was honorably discharged'
in November 1945. The service records show the ship the veteran was assigned
to was sunk while in action against the enemy. He was hospitalized and during
this hospitalization, a diagnosis of schizophrenic reaction was given and service
connection was granted for same.
The veteran was admitted to Cincinnati General Hospital in July 1947 and
also in July 1947 a court order was issued by the probate court in Hamilton
County, Ohio, committing him to the Veterans' Administration hospital in-
Lexington, Ky.
In November of 1947, the veteran was released as not psychotic and competent.
Due to his disability, he continued to go "downhill"—and eventually landed oni
"skid road" as a vagrant.
1936 JUDICIAL REVIEW OF VETERANS' CLAIMS

On March 8, 1960, he was found on the street in Sacramento, Calif., and

was taken to a hospital and was pronounced dead on arrival. Cause of death
was attributed to acute and chronic alcoholism. However, the autopsy report
showed the blood alcohol content was within normal limits.
We contend, if the veteran was given proper medical care and guardian super-
vision by the Veterans' Administration in 1947, this would have been avoided.
There is a report in the file from Dr. and he states in his opinion:
"There is some doubt as to whether or not the immediate cause of death was
due to alcoholism. The veteran's mental unsoundness was subject to periods
of exacerbation and remission and that he was of unsound mind and potentially
dangerous to himself and to others."
We feel, based on this statement together with the autopsy report, a reason-
able doubt existed as to the cause of death and the doubt should have been
resolved in favor of the veteran, but this claim was denied by the Board of
Veterans' Appeals.
We feel, if this case was presented to an impartial, unbiased judicial body
with all its evidence, they would have resolved the doubt in favor of the
veteran.
Case No. 7. Service connection for the cause of death
The records indicate the veteran served honorably from June 1929 to August
1948. He had been a prisoner of war of the Japanese Government from April
9,1942 to September 6,1945.
I t has been contended by the Veterans' Administration the cause of death was
due to Laennec's cirrhosis. I t is further noted, upon reviewing the file, at the
time of reparation he was emaciated and undernourished and the affidavits of
record would indicate he was under medical treatment for these conditions
while he was a prisoner of war.
The veteran's widow testified under oath stating: "Prior to and during our
marriage, the veteran did not use alcohol to excess." There are also other sworn
affidavits in the case file from friends confirming the widow's statement.
The pertinent issue in this case is whether or not the veteran's death was
due to the excessive use of alcohol causing cirrhosis or whether his gastrointesti-
nal condition, including cirrhosis, may have been precipitated or caused by his
long imprisonment, approximately 4% years, as a prisoner of war of the Japanese
Government. Service connection for the cause of death was denied by the
Board of Veterans Appeals.
We believe, based on all the evidence of record in the veteran's file and due
to the stress and strain the veteran had undergone during the 4% years as a
prisoner of war, a reasonable doubt had existed as to the cause of death and
if this case was presented to an impartial, unbiased judicial body, they would
have resolved the doubt in favor of the veteran.
Mr. KORNEGAY. Mr. Ellsworth, have you any questions?
Mr. ELLSWORTH. Thank you, Mr. Chairman.
Mr. Freudenberger, I would just like to thank you for t h a t very
good statement. This is my first exposure to this subject. I wasn't
on this committee in the 86th Congress, so I am very appreciative of
your fine statement and find a great deal of merit in it and want to
express my appreciation.
I have no further questions.
Mr. FREUDENBERGER. T h a n k you, sir.
Mr. KORSTEGAY. Mr. Freudenberger, I note from your statement
t h a t you appeared at the hearing in 1960. You made no reference
to the provision relating to the appointment of commissioners. I n
fact, as I understand, that was not in the bill.
Mr. FRETJDEXBERGER. T h a t was not in our bill.
Mr. KORNEGAY. That was not in your bill a t t h a t time. B u t since
t h a t time, as a result of those hearings you now approve the inclusion
of the provision in the bills authorizing the court to appoint these 50
commissioners; is that correct?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1937

Mr. FREUDENBERGER. A S a practical matter, that is correct. We

arrived at that opinion before this second session convened and we
prepared our bill H.R. 775, on that basis.
Mr. KORNEGAY. F o r the purpose of the record, in order t h a t we
have some amplification on that line, how did you arrive at the figure
50 ? I say "you." How was it, if you know, arrived at ?
Mr. FREUDENBERGER. I think probably the answer to that is because
of the number of States, 50 States. T h a t was a key provision of
Congressman Devine's very excellent bill that he introduced in the
86th Congress. H e was the first witness at the 1960 hearings. W&
were impressed by it and I know the members of the committee were
as a practical matter.
Mr. KORNEGAY. Of course we all know that the amount of business
would vary from State to State.
Mr. FREUDENBERGER. True.
Mr. KORNEGAY. Do you envision a provision that would authorize
the court to assign commissioners to hold hearings anywhere through-
out the United States where they might be needed at the time ?
Mr. FREUDENBERGER. Yes, sir, I do. I think that would be the
proper way to operate.
Mr. KORNEGAY. Of course, under the procedure, a person who re-
ceived an adverse decision at the hands of the Board of Veterans
Appeals would appeal from there to the commissioner and from the
commissioner to the court, three- or five-man court, is that your under-
standing ?
Mr. FREUDENBERGER. J u s t as to the mechanics of the appeal, that
would have to be worked out, of course, by the rules of the court.
Mr. KORNEGAY. I want to get your thinking on it.
Mr. FREUDENBERGER. I would think the man would appeal to the
special court. Then there would be a hearing conducted by the
appropriate commissioner who might be designated.
Mr. KORNEGAY. I n or close to the location of his home?
Mr. FREUDENBERGER. Yes, sir.
Mr. KORNEGAY. I n other words, an additional reason for the com-
missioners would be convenience to the veterans ?
Mr. FREUDENBERGER. Yes. I t is our idea, of course, that the special
court will sit in the city of Washington, D.C.
Mr. KORNEGAY. NOW, are these cases that you have set forth in your
opinions in addition to those that were set forth at the time you
testified in 1960?
Mr. FREUDENBERGER. That is right. They are additional cases.
Many more could be presented but we didn't want to burden the record
or anything like that.
Mr. KORNEGAY. Are these cases since 1960 or are they cases you
could have cited back in 1960 ?
Mr. FREUDENBERGER. Well, of course they are cases that developed
through a period of several years but you might say they are cases that
were noted particularly in connection with this hearing later than t h e
previous ones.
Mr. KORNEGAY. Of course I realize they go back to maybe World
W a r I I but they are cases that have come to your attention since?'
Mr. FREUDENBERGER. Yes, that is true. T h a t is correct.
1938 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. KORNEGAY. Mr. Peltz, do you have any statement you would
like to make for the record ?
Mr. PELTZ. I have just a few little remarks I would like to make.
This is my first appearance before the committee. I wouldn't want
to take too much time. But there is one section in this bill that I
believe should be clarified on page 6.
Mr. KORNEGAT. Are you referring to H.K. 775 ?
Mr. PELTZ. T h a t is right, H.R. 775. Page 6, 4055, "attorneys and
agents." I t spells out, but there is not any detail, that the court may
prescribe qualifications of persons who may represent claimants in
proceedings before commissions. I believe that this provision should
be spelled out. Disabled American Veterans—I suppose you are all
well aware of our national service officers throughout the country.
W e are proud of them. They are well-trained men. They have an
.average of 15 to 16 years of service in veterans' benefits. They are
eminently qualified; however, this bill would not indicate that persons
that are national service officers, or accredited representatives, or
known as attorneys-in-fact, would be permitted to appear before these
commissions. I think that this ought to be spelled out, that the quali-
fication for the persons who may present the claimant be listed. I
think in this way we would take advantage of men that would be
qualified to present the veterans' problems and present these questions.
You realize that the national service officer in the field spends years
in development of the case, brings it u p as far as the Board of Vet-
erans' Appeals. I f he doesn't hold a law degree he would not be
able to appear before this judicial review.
Mr. KORNEGAY. That is in reference to the court ?
Mr. PELTZ. T h a t is right.
Mr. KORNEGAY. Are you referring to that provision in the first sen-
tence or second sentence which authorizes the court to prescribe the
qualifications for persons representing claimants before the commis-
sion?
Mr. PELTZ. I t is the second sentence.
Mr. KORNEGAY. There are two situations.
Mr. PELTZ. I realize you must be a member of the bar. B u t it
doesn't seem fair that this may happen to preclude the accredited
representative from appearing before the commissioners.
I know t h a t the whole reason for this judicial review is to see to it
that disabled veterans would receive another avenue so that he can
obtain his just rights. I n order to do this, they should take advan-
tage of those t h a t are qualified and spell it out. This is the only ques-
tion that I would like to bring up today.
Mr. KORNEGAY. I S it your position that you feel that service officers
who are not attorneys should have the right to appear before the
court representing the claimants?
Mr. PELTZ. I t could be spelled out—appear before the court as a
friend of the court and before the commissioners in representing the
claimant.
Mr. KORNEGAY. NOW, as I read this, there are two situations. One
is, you have the court which will sit here in Washington and then
you have the commissioners which will hold hearings throughout the
•country. The way it is worded now, at least the interpretation I place
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1939

'on it, is that the licensed attorneys, that is, the attorneys who are mem-
bers of the bars of the States, or the Federal bar, will be permitted
to appear before the court, but that the court itself may prescribe the
•qualifications of the persons who are entitled to appear representing
claimants before the commission, which I would assume would in-
clude people who are not attorneys, that is, service officers, or per-
sons who are otherwise qualified but do not hold a license to practice
law.
Now, let me see if I understand you. Do you take the position that
the service officers, or anyone who otherwise is qualified, who is not
an attorney, should be entitled to appear before the court itself?
Mr. PELTZ. Yes; I take the position that if that can be done, that
that be p u t into this bill. I don't mean to be facetious about it, but
the reason we are for this bill is that we believe that the Veterans'
Administration and the Board of Veterans' Appeals do not follow the
intent of Congress when they pass the laws. I t is not spelled out.
They make their own interpretations and regulations. I believe that
the intent of this committee and of Congress, in passing this, would
be that the disabled veteran obtain his just and equitable rights, that
he would have another avenue to go tc. We must not assume that a
court that would be set up would allow accredited representatives,
attorneys-in-fact, to appear before the court or to appear before the
'commissioner. I t is because it is taking an assumption that it will be
•done, that this is our intent, that we are sitting here today trying to
set up another court of review. I believe we ought to spell this out.
I don't mean to, let's say, take your time and tell you about the
national service officers of DAV. We are proud of the fact that we
have trained these men. They have gone through special training at
American University. We have given them special training in the
field. Our full staff has an average of 15 to 16 years of devoted full-
time work in this field. I don't think that there is any group in the
United States that is qualified, whether they hold a license to
practice before the Federal court or not, that can carry through the
'claims for the disabled veteran as well as our national service officers.
Mr. KORNEGAT. I n other words, you draw no distinction between
the qualifications to appear before the court or the commissioners?
Mr. PELTZ. I would suggest that you set up qualifications that at
least a man who had devoted full time in the work of veterans' bene-
fits, that he has at least 5, 10, or 15 years of training in this field,
and this has been his profession and his work, and that he would
meet these qualifications to appear. B u t I believe it should be spelled
•out.
Mr. KORXEGAT. Can you think of any other category of person that
should be included in addition to attorneys at law and veterans'
•service officers?
Mr. PELTZ. I can't think of any others that are in this field who
are accredited representatives and attorneys-in-fact recognized to
practice before the Veterans' Administration. I feel they are a special
group eminently qualified to follow through on a veteran's case,
whether it be on a regional level or whether it be on a Board of
"Veterans' Appeals level or before this court.
Mr. KORNTEGAT. Mr. Haley ?
Mr. H A L E T . Mr. Chairman, I have no questions.
1940 JUDICIAL REVIEW OF VETERANS' CLAIMS

I want to apologize for not being here at the beginning' of the

session. Mr. Saylor and I have another committee which met today
and we cannot be in two places at one time. Sometimes we have to-
make u p our mind where we can do the most good or the most harm.
I understand that the testimony insofar as the D A V is concerned
is in favor of this legislation.
T h a t is all I have.
Mr. KORSTEGAY. Mr. Saylor ?
Mr. SAYLOR. Mr. Chairman, I join with Mr. Haley from Florida
and apologize to the representatives of the D A V for not being here
to hear the first portion of their testimony. I have yet to discover how
I can be twins, or, on some days such as this, triplets. I would be
most happy to oblige, to be three places at one time.
I will ask you, sir, since you seem to take objection to the provision
in the bill that provides that only persons who are members of the-
bar of the Federal court or the highest court in the State should be
admitted to practice before the court?
Mr. FRETTDENBERGER. May I say, Mr. Saylor, that Mr. Peltz ex-
pressed his own personal opinion on that in answer to a question that
was asked him.
Mr. SAYLOR. I n other words, the D A V has not taken a position as:
an organization ?
Mr. FRETJDENBERGER. We support the bill as it stands.
Mr. SAYLOR. I can appreciate your views, sir, that certain people-
who deal with one phase of a law might become experts in it. H o w -
ever, the handling of veterans' claims involves more than, I think,
just hearings before the Board of Veterans' Appeals. While merely
being a graduate of a law school and admitted to court does not make
all of those people competent to handle all the claims, I think it is
the minimum requirement that we can ask. I think t h e various
courts that have been established by the Federal Government have-
discovered over a long period of years that lawyers are best qualified
to handle cases before the Federal courts. I t is true of the Court of
Military Appeals, it is true of the Court of Claims, unless you want
to represent yourself, and the other special courts. While-1 can- tell
you that, from experience in Pennsylvania, for example, we allow
individuals who are not lawyers to practice before certain commissions,
such as the workmen's compensation commission, that as soon as the-
case goes from the commission to a court, it then becomes necessary
to have a qualified attorney to represent you. This is a result of Penn-
sylvania, I am sure, finding out that even though you may be an expert
in a field that when it comes to court matters lawyers are better
qualified than other individuals.
Mr. KORNEGAY. Mr. Ellsworth ?
Mr. ELLSWORTH. I have nothing further. Thank you.
Mr. KORNEGAY. Mr. Wood, we are delighted to have you and would
be glad to have any statement you wish to make.
Mr. WOOD. I don't believe I have any further statement, Mr. Chair-
man. I believe we have presented our position on this legislation very
concisely. I believe that the qualification as to who shall appear before
the commissioners would be something that the court will decide and
I would believe, sir, that it will probably be decided that accredited
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1941

Tepresentatives could appear before the commissioners in the develop-

ment of evidence, in the presentation of evidence and in presenting
our appeal. I would also believe t h a t it would be possible, in a
particular case, that an accredited representative might appear before
the court as a "friend of the court," I believe the proper term is,
and perhaps present a statement at that particular time to be utilized
in conjunction with the presentation by the attorney.
I believe that this is a very necessary piece of legislation and it is
•one that the D A V has long stood for. And I hope at this particular
session of Congress that it will, in fact, become law.
Thank you very much.
Mr. KORNEGAY. Mr. Downer, counsel for the subcommittee?
SUBCOMMITTEE COUNSEL. Mr. Freudenberger, the question I am
:about to ask, I want it understood doesn't reflect on the comments of
any particular service officer, but I think the record should show at this
point, if you know, whether or not the Veterans' Administration has
any requirements or qualifications that one must meet in order to rep-
resent a claimant before the Veterans' Administration?
Mr. FREUDENBERGER. Mr. Peltz, would you please answer that ques-
tion?
Mr. PELTZ. M r . W o o d ?
Mr. FREUDENBERGER. Mr. Wood will answer the question.
Mr. WOOD. Mr. Chairman, to answer the question specifically, the
:accreditation of representatives is a question for the service depart-
ment of various organizations. Usually the director of claims or his
•counterpart in a particular veterans' organization will request of the
Veterans' Administration the accreditation of an individual service
•officer. There is, of course, within the Veterans' Administration reg-
ulations, requirements that the individual has to be able to meet, such
:as his integrity, he is in some cases investigated and he is required
to understand and he is required to follow the necessary safeguards
that are placed on the confidential records of veterans in meeting his
•obligation both to the veteran and to the Veterans' Administration.
SUBCOMMITTEE COUNSEL. I S he required to pass any examination as
to his qualifications or competence?
Mr. WOOD. ISTo, sir.
SUBCOMMITTEE COUNSEL. D O you know of any State that requires
any such examination?
Mr. WOOD. Sir, I believe there are in some States organizations
known as department of veterans' affairs which are p a r t of the State
government. I n such instances the State may require the candidate
for the position of service officer to take an examination, at which
time he is asked various questions. I know specifically that in Cali-
fornia the State department of veterans' affairs requires their service
officers to pass an examination.
SUBCOMMITTEE COUNSEL. That is all.
Mr. KORNEGAY. How many service officers does the DAV have in
the country ?
Mr. WOOD. 130.
Mr. KORNEGAT. D O you happen to know about the other national
veterans' organizations—VFW, American Legion, AMVETS—what
numbers they might have ?
1942 JUDICIAL BEVIEW OF VETERANS' CLAIMS

Mr. WOOD. N O , sir; I do not know that.

Mr. KORNEGAY. Because in addition to the service officers for th&
various veterans' organizations, many States also have veterans' com-
missions which have qualified persons doing the same type of work;,
is t h a t correct ?
Mr. WOOD. Yes, sir. I n some instances the service officer may rep-
resent a State and also a veterans' organization as well. H e may, in
fact, represent several veterans organizations in addition to the State,,
depending upon the particular setup in the State.
Mr. KORNEGAT. Is there a general availability of service officers:
throughout the country ?
Mr. WOOD. Yes, sir. I n most regional offices of the Veterans'"
Administration you will find representatives of all the major veterans,
organizations.
Mr.KORNEGAT. M r . H a l e y ?
Mr. HALEY. Mr. Chairman, I might say this. I do not know, of"
course, how other States handle these. I n my State of Florida, the-
American Legion, the V F W and DAV, they have a service officer, but
my county, and this is pretty much true throughout the State, the-
county itself employs a service officer that handles or will handle any
veteran's claim regardless of whether he belongs, whether the veteran
himself might belong to a veterans organization. H e will assist him:
any time, or any time a veterans organization service officer calls on
him he will assist those organizations, too. I forget at the moment
just how many we have in Florida but practically, I would say, better-
than half of the 67 counties in Florida employ a man to do nothing
other than handle veterans' claims and look out for his interests.
Mr. FREUDENBERGER. May I say a word there? The D A V r e p r e -
sents veterans and their dependents throughout the entire country
without requiring that the person be a member of the D A V or an<
auxiliary.
Mr. HALEY. I am well aware of that fact. I just thought I would
say that in addition to the veterans service officers that the various,
organizations have, we do have a man who is well versed in veterans'
entitlements, laws, and so forth, and his services are available to all-1
the veterans.
Mr. KORNEGAT. Mr. Saylor?
Mr. SAYLOR. F o r the record, do you know how many cases the DAV"
represented before the various agencies of the Veterans' Administra-
tion in 1961?
Mr. FREUDENBERGER. Mr. Peltz can give you a pretty good idea of'
that.
Mr. PELTZ. Do you want the total amount of cases handled for the-
year?
Mr. SAYLOR. The last year you are familiar with.
Mr. PELTZ. I would have to make an approximation of that. I will'
give you the exact figures when I get back to the office^ I will-call
it in. About 200,000 cases for the year.
Mr. SAYLOR. I n how many of those cases did you represent veterans -.
before the Board of Veterans Appeals?
Mr. PELTZ. Approximately 6,000.
Mr. SAYLOR. Of those 6,000 cases, what is your percentage of cases.-,
that you win ?
 JUDICIAL EEVIEW OP VETERANS' CLAIMS 1943

Mr. PELTZ. Well, the percentage has gone up a little bit. I would
say about 14 percent.
Mr. SAYLOR. Of all the cases that you have either won or lost in
which you represented veterans before the Board of Veterans Appeals,
how many dissenting opinions were filed for the last year, if you know %
Mr. PELTZ. Only within the last few months I have noticed that dis-
senting opinions are starting to come out of the Board of Veterans
Appeals. I had not noticed any dissenting opinions up until this
year, but there are two that came to my attention within the past few
months. As you know, the Board of Veterans Appeals increased
their members of the Board and the Chairman of the Board has re-
solved the benefit of the doubt in favor of the veteran in two cases
that have come to my attention in the past month.
Mr. SAYLOR. Then it might be a fair observation to make that the
dissenting opinions have gone up materially even though it is only
two since the 1960 hearings ?
Mr. PELTZ. Yes.
Mr. SAYLOR. T h a t is all, Mr. Chairman.
Mr. KORNEGAY. Mr. Ellsworth ?
Mr. ELLSWORTH. N O ; I have nothing further.
Mr. KORNEGAY. Mr. Freudenberger, Mr. Peltz, and Mr. Wood, we
are delighted to have had you and thank you very much for coming
here to testify before this special subcommittee.
Mr. FREUDENBERGER. Thank you very much.
Mr. KORNEGAY. Our next witness is Mr. John J. Corcoran, directoi
of the National Rehabilitation Commission of the American Legion.
STATEMENT OF JOHN J. CORCORAN, DIRECTOR, NATIONAL RE-
HABILITATION COMMISSION, THE AMERICAN LEGION. ACCOM-
PANIED BY JOHN MEARS, LEGISLATIVE REPRESENTATIVE OF
THE AMERICAN LEGION
Mr. KORNEGAY. Mr. Corcoran, come around and bring any asso-
ciates you might have with you.
Mr. MEARS. Mr. Chairman, I am John Mears, legislative representa-
tive of the American Legion and I am with Mr. Corcoran.
Mr. KORNEGAY. W e are certainly delighted to have you with us
also, as well as Mr. Corcoran.
Mr. CORCORAN. May I proceed, Mr. Chairman ?
Mr. KORNEGAY. Yes.
Mr. CORCORAN. We appreciate this opportunity to present the views
of the American Legion on this important subject now being con-
sidered.
Mr. Chairman, I think perhaps it might be well for the record if
I qualified myself at this time.
As indicated, I am the director of National Rehabilitation Com-
mission of the American Legion, the Legion's commission within
whose jurisdiction this matter falls.
I am a graduate of Georgetown Law School, graduating in 1951,
and was admitted to the bar in the District of Columbia in 1952. I
am a member of the bars of the District of Columbia, the District
1944 JUDICIAL REVIEW OF VETERANS' CLAIMS

Court for the District of Columbia, the Court of Appeals for the
District of Columbia, and the U.S. Court of Military Appeals.
I was legal consultant for the American Legion judge from 1952
to 1956, at which time I accepted the position of attorney-adviser
with the National Security Agency. I returned to the American
Legion in January of 1958 as director.
As the subcommittee knows, hearings were held in the 86th Con-
gress in an effort to determine whether decisions of the Administrator
of Veterans' Affairs should be subject to some type of judicial review.
A t that time we testified that it was the position of the American
Legion that we were not in support of such a proposal. Although the
national rehabilitation commission has given the question further
consideration, our position remains unchanged.
Mr. Chairman, with your permission at this time I would like to
submit for the record a copy of the controlling resolution, controlling
within the American Legion, that is, national committee Resolution
No. 7 from the spring 1959 meeting.
May I submit this for the record ?
Mr. KORNEGAY. Without objection, it is ordered placed in the
record.
(The material referred to follows:)
NATIONAL EXECUTIVE COMMITTEE MEETING OF THE AMERICAN LEGION HELD APRIL
29-MAT 1, 1959

RESOLUTION NO. 7. EEVIEW OP VETERANS' ADMINISTRATION DECISIONS

Whereas two resolutions referred by the 1958 national convention to the na-
tional rehabilitation commission propose a further review of Veterans' Adminis-
tration decisions than are presently provided for by law, these being—
No. 204 which asks for legislation establishing a U.S. Court of Veterans
Appeals to consider appeals from all adverse decisions of the Board of Vet-
erans' Appeals, and
No. 454 seeking legislation making Veterans' Administration, including
Board of Veterans' Appeals, decisions reviewable judicially or by the Gen-
eral Accounting Office or other appropriate governmental agency ; and
Whereas after careful consideration it has been decided that experience, ac-
quired in four decades, does not justify sponsorship or support by the American
Legion of legislation providing for judicial or other review of Veterans' Adminis-
tration decisions than is presently allowed by law; and
Whereas it is believed that the best interests of veterans, their dependents and
beneficiaries will be served by maintaining the existing basis for appellate re-
views and improving the Board of Veterans' Appeals operations wherever indi-
cated ; and
Whereas it is the considered opinion of the American Legion that an im-
mediate improvement in the Board's position and decisions can be attained if
it ceases its policymaking functions which are believed beyond the purposes for
which it was established : Therefore be it
Resolved by the National Executive Committee of the American Legion in
regular meeting assembled at Indianapolis, Ind., on April 29-30 and May 1, 1959,
That the American Legion shall support no legislation providing for a review
of Veterans' Administration decisions other than now prescribed by law; shall
continue to bring to the attention of the Administrator of Veterans' Affairs and
Chairman, Board of Veterans' Appeals, its recommendations for improvement of
the appellate processes where indicated; and shall seek to have the Board of
Veterans' Appeals excluded from participation in policymaking functions of the
Veterans' Administration by action of the Administrator or by legislation if
required.
Mr. CORCORAN. There is, Mr. Chairman, as the members have al-
ready noted, a copy of this attached to the prepared statement.
 JUDICIAL REVIEW OF VETERANS* CLAIMS 1945

Mr. HALEY. Mr. Chairman, if I may, this resolution was of the

American Legion as of what date?
Mr. CORCORAX. 1959.
Mr. HALEY. 1959. H a s there been a subsequent resolution or did
they just reaffirm the position?
Mr. CORCORAX. There has been no subsequent resolution. W e have
presented this matter to our commission, which is the first step in the
policymaking process, especially in the light of the hearings held by a
special subcommittee of this full committee in 1960. T h e only addi-
tional point on t h a t is, at our last national convention no resolution
came in from any department asking for judicial review or a veterans'
court or anything of that nature we are discussing now.
When we testified in April 1960 we submitted a rather detailed ex-
planation of why we felt t h a t more harm than good would flow from
the establishment of the right of judicial review.
W i t h your permission I now submit for the record a copy of that
statement.
Again, Mr. Chairman, we have already attached t h a t to the brief
covering memo statement you have before you.
Mr. KORXEGAY. Without objection that will be included in the
record.
(The information referred to follows:)
STATEMENT OF JOHN J. OOKCOBAN. DIRECTOR, NATIONAL REHABILITATION COM-
MISSION, T H E AMERICAN LEGION, APRIL 27, 1960
Mr. Chairman and members of the subcommittee, the American Legion is grate-
ful for this opportunity to present its views on the question under consideration
by the subcommittee, namely, should there be judicial review of the decisions of
the Administrator of Veterans' Affairs. We wish to compliment the subcom-
mittee and in fact the entire committee for still another study and effort being
performed in the interests of the veterans of this country. Although we must
disagree with the proponents of the bills now pending before this subcommittee,
we wish to compliment them too because we know that their purpose is high
and their motive is good.
The position of the American Legion on judicial review of decisions of the
Administrator of Veterans' Affairs is reflected in Resolution 7 adopted by the
national executive committee at its spring 1959 meeting. In summary, that posi-
tion is that the experience of the American Legion acquired over four decades
does not justify sponsorship or support by the American Legion of legislation
proposing judicial review. Incidentally, Resolution 7 also directs the staff of
the American Legion to continue to seek improvement in the appellate processes
of the Veterans' Administration, and particularly to seek to have the Board
of Veterans' Appeals excluded from participation in policymaking and other
nonjudicial type functions. With the chairman's permission I would like to
submit for the record a copy of this resolution.
The question facing us is admittedly a difficult one. One might expect to find
the American Legion in support of the proposal for judicial review because the
legislation is intended to be beneficial to veterans and their dependents. The
American Legion would support the legislation if it believed it would be bene-
ficial. We do not support the proposal because we are convinced that the
veterans of this country would lose more than they would gain were judicial
review provided.
The American Legion cannot support the proposal to provide judicial review
for practical reasons and for reasons of principle and philosophy.
The American Legion adheres to the single agency concept in the field of
veterans affairs. This does not mean that we always agree with or support the
Veterans' Administration itself, but that we are convinced of the soundness
of the philosophy that the Veterans' Administration should be the only agency
of the Government charged with the responsibility to dispense the benefits
granted by the Congress. The proposal to subject to judicial review decisions
80082—62 15
 1946 JUDICIAL REVIEW OF VETERANS' CLAIMS

of the Administrator of Veterans' Affairs is, in our opinion, an encroachment

upon that principle. Review by the judiciary is only part of the problem. The
next step, if not a concurrent one, might well be to provide administrative re-
view through supervision by the General Accounting Office or some other agency.
This we oppose. The finality clause was enacted by the Congress not to limit
the rights of veterans but to protect them. The Administrator was given his
great authority not to deprive veterans of benefits but to make sure that the
agency would be unhampered in its mission. The American Legion is convinced
of the soundness of this proposition and of the necessity to preserve the prin-
ciple.
Supporters of judicial review of decisions of the Administrator may argue
another principle—that the review power of the courts is an inherent one and
one necessary to circumscribe the actions of the head of an administrative
agency. Even if these proposals for judicial review were a demonstration of
an adherence to this principle we would not support them because in balancing
the interests we conclude that the single agency concept outweighs the other.
But the proposal for review of decisions of the Administrator is not consistent
or in accord with the principle of the review power of the judiciary because, as
the representative of the American Bar Association testified, no "review" of
Veterans' Administration decisions, as it is understood in administrative law,
is possible. Because of the complete informality of the VA adjudicatory proc-
esses it is impossible to subject decisions of the Administrator to the type of
review commonly practiced over actions of an administrative agency. Rather,
a counterproposal is made. It is stated that there is no alternative but to
authorize commissioners to take testimony, admit evidence, and compile a
record. This point, it seems to us, clearly demonstrates that the proposal for
judicial review is not presented in the interest of the exercise of the inherent
right of the judiciary to review but is instead an effort to have some individual
or group other than the Veterans' Administration evaluate the evidence.
I have said that for practical reasons the American Legion does not support
the proposal before this subcommittee. By that I mean, aside from the prin-
ciple involved, we are convinced that little good would be achieved and that
the veterans of this country would lose more than they would gain. We think
that little benefit would be realized because most controversial decisions ren-
dered by the Board of Veterans Appeals involve factual questions and evalua-
tion of evidence. Under the ordinary standards for judicial review of ad-
ministrative agency action the court will not reverse if the agency action is
supported by substantial evidence. In the vast majority of decisions with
which there is disagreement it must be admitted that there is substantial evidence
to support the decision complained of. Generally it is the conclusion by the
person aggrieved that the Board of Veterans Appeals has incorrectly evaluated
the evidence. Rarely could it be successfully contended that there was no
"substantial evidence" to support the Board's decision. Thus, very few deci-
sions by the Board of Veterans Appeals involving questions of fact would be
reversed by the court. An alternative would be to authorize review de novo
by the court. This is not acceptable to the American Legion because it does
nothing more than substitute the judgment of the court for that of the Board
of Veterans Appeals. It would impose a difficult burden upon the court.
Claimants who could not come to Washington to give testimony and present'
evidence would be at a disadvantage. It would be impracticable because of the
workload to send commissioners out to take evidence. Further, it is my opinion
that such a proposal is not consistent with sound administrative law.
Some decisions rendered by the Board of Veterans' Appeals with which there
is dissatisfaction involve questions of law. We think that the number is small.
To subject such decisions to judicial review would not be desirable, we think, be-
cause of the resulting inflexibility. At present the Administrator has broad
authority to interpret the law and to modify that interpretation when he is con-
vinced of the necessity to do so. An interpretation 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. In passing. I invite attention to 38 United
States Code 211(b) which provides that "the Administrator may require the
opinion of the Attorney General on any question of law arising in the adminis-
tration of the Veterans' Administration'.
We fear that the informality of the Veterans' Administration adjudicatory
processes would be lost. This informality is generally of great benefit, to the1
veteran. The Veterans' Administration has great latitude in receiving and
evaluating "evidence" of any nature. If decisions of the Administrator were
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1947

made subject to judicial review it would be necessary to formulate the VA

proceedings, or to permit the court to operate under rules similar to those fol-
lowed by the Veterans' Administration, or to constitute the court as half trial
court and half appellate court. The American Legion finds none of these
desirable.
If Veterans' Administration decisions were reviewed by a court it would fol-
low that the doctrine of res adjudicata would obtain. This would be a severe
loss to the veterans. At present a veteran may reopen his claim at any time
upon the submission of new and material evidence. In addition, even in the
absence of such evidence, we find the Veterans' Administration quick to recon-
sider decisions adverse to the veterans. Experience has established that a sub-
stantial number of cases are allowed even after they have been denied several
times. If the veterans lost this advantage they would be deprived of a very
valuable privilege they now enjoy.
The problem of fees is important. Frequently there is no monetary benefit
gained by a favorable decision of the Administrator (where the question of serv-
ice-connection only is involved, etc). Often the monetary recovery is small.
Thus, veterans and their dependents are usually not in a position to pay substan-
tial fees. As a matter of fact, attorneys who represent veterans before the
Veterans' Administration are limited by act of Congress to a maximum fee of
$10. If a reasonable attorney's fee were permitted a hardship would be worked
upon the veterans, a hardship from which Congress throughout its history has
protected them. On the other hand, if attorneys' fees were severely limited as
they now are in claims with the Veterans' Administration it would be difficult
if not impossible to engage an attorney.
These and the other necessary incidents of judicial review have compelled the
American Legion to refrain from support of such legislation.
The American Legion finds the situation in the adjudicatory processes of the
Veterans' Administration generally satisfactory. For the subcommittee's in-
formation I have attached to my statement a table showing the appeals presented
by the Washington staff of the American Legion in the years 1955 through 1959,
and the percentage of reversals and remands. In that period our staff presented
22,587 cases and we obtained reversals in 2.S42 cases and remands in 2,515 cases.
This means that of the total number of cases presented we obtained either
reversals or remands in 5,357 cases, for an average of almost 24 percent.
I have said that the American Legion does not support the proposal for judicial
review and that we consider the situation in the Veterans' Administration to be
generally satisfactory. This does not mean, of course, that we are dedicated to
the present system or that we are completely satisfied. As a matter of fact, we
think that the present arrangement in the Board of Veterans Appeals can be
improved. We feel that the Board of Veterans Appeals should not be a part
of the policymaking function of the Veterans' Administration. We believe that
it should not be engaged in nonjudicial type functions. We are convinced that
the Board should limit itself to the jurisdiction and mission established for i t
by Congress in the basic statute. We object to the present procedure in which
the Board of Veterans Appeals is "coordinated" on proposed regulations and
issues. I regret to inform the subcommittee that the Administrator of Veterans'
Affairs has rejected our recommendations.
In conclusion, I again thank the subcommittee for its interest and effort in
behalf of the veterans of our Nation. We urge the subcommittee not to favor-
ably report any bill providing judicial review but to join us in perfecting the
existing system.
NATIONAL EXECUTIVE COMMITTEE MEETING OF THE AMERICAN LEGION HELD
APRIL 29-MAY 1, 1959
RESOLUTION NO. 7. REVIEW OF VETERANS' ADMINISTRATION DECISIONS

Whereas two resolutions referred by the 1958 National Convention to the Na-
tional Rehabilitation Commission propose a further review of Veterans' Admin-
istration decisions than are presently provided for by law, these being—
No. 204 which asks for legislation establishing a U.S. Court of Veterans
Appeals to consider appeals from all adverse decisions of the Board of
Veterans Appeals, and
No. 454 seeking legislation making Veterans' Administration, including
Board of Veterans Appeals, decisions reviewable judicially or by the General
Accounting Office or other appropriate governmental agency; and
 1948 JUDICIAL REVIEW OF VETERANS' CLAIMS

Whereas after careful consideration it has been decided that experience,

acquired in four decades, does not justify sponsorship or support by the American
Legion of legislation providing for judicial or other review of Veterans' Admin-
istration decisions than is presently allowed by law; and
Whereas it is believed that the best interests of veterans, their dependents and
beneficiaries will be served by maintaining the existing basis for appellate reviews
and improving the Board of Veterans Appeals operations wherever indicated; and
Whereas it is the considered opinion of the American Legion that an immediate
improvement in the Board's position and decisions can be attained if it ceases
its policymaking functions which are believed beyond the purposes for which it
was established : Therefore be it
Resolved, by the National Executive Committee of the American Legion, in
regular meeting assembled at Indianapolis, Ind., on April 29-30 and May 1, 1950,
That the American Legion shall support no legislation providing for a review of
Veterans' Administration decisions other than now prescribed by law ; shall con-
tinue to bring to the attention of the Administrator of Veterans' Affairs and
Chairman, Board of Veterans Appeals, its recommendations for improvement of
the appellate processes where indicated; and shall seek to have the Board of
Veterans Appeals excluded from participation in policymaking functions of the
Veterans' Administration by action of the Administrator or by legislation if
required.
Appeals presented by the American Legion, Washington staff

Reversals Remands
Fiscal year Total number
Number Percent Number Percent

1955 4.374 563 12.87 533 12.12

1956 4,450 582 13.07 516 11.69
1957 3,900 536 13.74 441 11.30
1958 4,718 557 11.80 505 10.70
1959 _ 5,145 604 11.73 520 , 10.10
1961 _ 10,113 !, 153 11.40 968 9.50
4,736 56S 11.99 503 10.62

Mr. CORCORAN. Our view remains essentially as described in our

statement of A p r i l 27,1960.
I t is important to note t h a t on J u n e 14, 1960, Mr. Sumner G.
Whittier, the Administrator of Veterans' Affairs, granted one of the
requests of t h e American Legion and excluded t h e Board of Veterans'
Appeals from participation in the coordination process in t h e de-
velopment and formulation of policy.
I would like to submit also, Mr. Chairman, for t h e record, a
copy of Mr. Whittier's letter.
Mr. KORNEGAT. Without objection i t will be placed in the record.
(The information referred to follows:)
VETERANS' ADMINISTRATION,
Washington, B.C., June H, 1960.
Mr. JOHN J. CORCORAN,
National Director of Rehabilitation,
1
The American Legion, Washington, D.C.
DEAR MR. CORCORAN : Last August you forwarded to me a copy of Resolu-
tion No. 7, which included the recommendation that the Board of Veterans'
Appeals be excluded from participation in policymaking functions of the
Veterans' Administration.
After further studying and evaluating the various factors involved, I have
concluded that the Board shall be excluded from participation in the coordina-
tion process in development and formulation of policy. However, this will
in no manner limit the Chairman's right to bring to my attention any matter
which the Board's experience Indicates should receive my further consideration.
• I believe this in in line with Resolution No. 7 of the American Legion.
Sincerely yours,
SUMNER G. WHITTIER, Administrator.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1949

Mr. CORCORAN. I will read this, Mr. Chairman. I t is dated June

14,1960.
DEAR MB. CORCORAN : Last August you forwarded to me a copy of Resolution
No. 7, which included the recommendation that the Board of Veterans Appeals
be excluded from participation in policymaking functions of the Veterans' Ad-
ministration.
After further studying and evaluating the various factors involved, I have
concluded that the Board shall be excluded from participation in the coordina-
tion process in development and formulation of policy. However, this will in
no manner limit the Chairman's right to bring to my attention any matter
which the Board's experience indicates should receive my further consideration.
I believe this is in line with Resolution No. 7 of the American Legion.
Sincerely yours,
SUMNER G. WHITTIER, Administrator.
The whole point involved there was: it has been the position of
the Legion for some time that improvement could be made in the
Board of Veterans Appeals, specifically in the area of the fact that
the Board engaged in nonjudicial type functions. This was one of
the points that we mentioned in our testimony the last time. This was
one of the points mentioned in that resolution and it is to this point the
letter is directed.
We have indicated, Mr. Chairman, and of course this is the crux
of the Legion's position and the point of debate between the Legion
and the proponents of judicial review; we say more harm than good
would flow from the creation of or the establishment of the right of
judicial review.
W i t h your permission I would like to summarize the reasons why
we feel that more harm than good would flow from it.
We feel that veterans actually would lose more than they would
gain from judicial review. We begin, first of all, with the premise
that there would be little to be gained. There would be something,
obviously, but we feel in degree it would be little.
Very few decisions of the Board of Veterans Appeals involving
questions of fact would, we think, if the court were properly insti-
tuted and properly created, be reversed by the court. Now, we testi-
fied at length at the last hearing on this point.
We feel that sound administrative law dictates that the decision of
an administrative agency should be reversed only if there is not sub-
stantial evidence to support the administrative agency's decision.
Now, if you follow that criteria, if you permitted judicial review
only to that extent, then we say that there would be few questions of
fact that would be reversed, because although there is disagreement
with the Board's decisions, it is a rare case in which it can be success-
fully contended that there is not some substantial evidence to support
the Board's decision.
Now, on the other hand, if you decline to follow that criterion, if
you depart from what I consider to be the established rule of judicial
review of the rulings of administrative agencies, and if you select some
other rule such as one contained in some of the bills before you, where
the court could reverse the Board's decision if not supported by the
preponderance of the evidence, then I think all you have done is sub-
stitute the judgment of one group of men for another group of men.
With this the American Legion does not agree. So far we have not
been able to persuade the proponents of this suggestion; however, we
do not feel that it would be desirable.
1950 JUDICIAL REVIEW OF VETERANS' CLAIMS

Now, the second point, or the second variation of the first point that
there would be little to be gained: The second point is that the number
of Board of Appeals decisions involving questions of law with which
there is dissatisfaction would be small. There are some. Again,
those decisions if favorably acted upon by the court would benefit some
small group of veterans. Then what harm would flow from that
benefit? We fear that we would lose in the Veterans' Administration
the flexibility that presently exists in this very area. The Adminis-
trator has great authority to vary interpretations of the law and really
that is what we are discussing, not the law itself, but interpretations
of the law. The Administrator has very great authority to vary his
interpretation, to modify his position on how a law shall be adminis-
tered or implemented and we say the Administrator has done this in
the past and we say that generally we are satisfied with the Adminis-
trator's reaction to the questions and to the points that have been sub-
mitted to him, although again we have not agreed with him on every
point. However we feel that to establish a coui't or to expose the deci-
sions to judicial review would thereby result in a loss of this flexibility,
which again we say, balancing the advantages, balancing the benefits,
we think outweights the advantages of the court.
We feel that there is probably much to be lost. We began by saying
there is little to be gained. Now we say there is much to be lost in the
establishment of a court or in the creation or establishment of judicial
review.
We feel that the informality of the VA adjudicatory process would
be lost. A t present, as every Representative knows and as the sub-
committee knows, and as every Representative who has appeared be-
fore the Veterans' Administration knows, the agency has great lati-
tude in receiving and evaluating evidence of any nature. They are
not bound by the rules of evidence. In a small number of cases this
works to the detriment of the applicant, because there are times when,
if you adhered strictly to the rules of evidence, a man might get extra-
neous evidence, hearsay type evidence, unsworn statements by doctors,
which is indicated, he should not get. So there are some cases where
the rules of evidence would reach one result while all the other evi-
dence, which is received, admitted, and weighed, is contrarily
indicated.
Here is an important point and perhaps one of the most important
points when we say that much would be lost. We feel that the doctrine
of res adjudicata would probably obtain following court review. A t
present a veteran may now reopen his claim at any time with the subr
mission of new material evidence. The Veterans' Administration
readily reconsiders adverse decisions upon our request or occasionally
upon their own motion. A substantial number of claims are allowed
upon reconsideration after several denials. We cannot conceive of a
situation where you would establish a court or expose the decisions of
the Administrator to judicial review where you would not have the
doctrine of res adjudicata.
Now, in some of the bills before you, there is a provision which I
have not been able to construe, which seems to try to meet this objec-
tion. I t seems to keep the door open. Perhaps this is not a good
time to discuss this because it i s a detail.
Mr. KORNEGAT. T h a t is H.R. 775 ?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1951

Mr. CORCORAN. Yes, sir. I t is on page 7. The amendment, of

course, is to section 4056 of title 38:
Nothing in this section can affect the authority of the Board of Veterans' Ap-
peals to reopen any claim or review or reconsider any decision formerly made
by the Board.
Now, I don't understand that. There is a cross-reference earlier in
' the bill which says, "Decisions of this court shall be final except for
4056." I don't know what 4056 means. Does this mean that after a
court has denied an appeal, or after the special court has denied an
appeal, that the Board can reopen and reconsider it? Does it mean,
and this is even more difficult to comprehend, that after the court has
allowed a case the Board can reopen it and reverse the court's decision ?
I don't understand the section. I think we will probably wind up
with the doctrine of res adjudicata. I think we will presently wind
up with a termination of an issue and we feel this would be a great
detriment, a great disadvantage, a great loss to the veteran.
We are continuing on the points of where we think veterans would
lose if judicial review was provided and we only have two more.
They are probably not as significant as the first ones we discussed.
We have alluded to this before. We say that an interpretation of law
by the court would have the characteristics of finality. We discussed
this earlier in our testimony. A t present, the Administrator now has
broad authority to intepret the law, modify interpretations, and so
forth. Obviously, an operation under a court would be less flexible.
I t would be more difficult to change, once the court has decided that
such and such an interpretation were correct.
Lastly, the payment of court and attorney's fees, we think presents
a problem. Obviously, if an attorney is engaged to provide assist-
ance, he provides valuable services and should be compensated for
those services.
From the beginning the Congress has placed severe limitations on
fees that courts could provide. There are probably a number of rea-
sons. One is the historical unpleasantry encountered when pension
attorneys represented veterans. But I think probably even more im-
portant and certainly more timelj' now is the fact that in so many
of these cases there is a very small monetary benefit to be derived.
Many times the only claim the man seeks to establish is service con-
nection for some condition. Many times no compensation flows from
the establishment of the service connection.
Sometimes the recovery gained from the favorable action on the
case is a very small amount of money, $19 a month. I t may only be
10 percent. Remember that there are 70 percent of the veterans receiv-
ing compensation that are in the 10-, 20-. or 30-percent bracket. So
you are dealing with the bulk of veterans who can ill afford, of course,
to pay large attorney fees.
I n the other area, in the pension ai-ea, you are dealing with veterans
who are permanently and totally disabled and in financial need. Here
again it would be difficult for them to pay reasonable attorney fees.
Now if you place some severe limitation on the amount of attorney
fees to be provided, then you couldn't get an attorney, which is under-
standable, of course. But we think this is one of the many factors to
be considered.
1952 JUDICIAL REVIEW OF VETERANS' CLAIMS

I think, if I had to try to put my finger on the one point which is

the most significant, the most profound and the most compelling
in this whole discussion, I would say that it is the nature of adjudi-
cation process in the Veterans' Administration.
Let me elaborate on that. Generally discussion on claims are not
terminable in the Veterans' Administration. There are some issues
•presented that cannot be finally decided today and binding for the
rest of the man's life. Sometimes, yes, but generally not.
• The man comes in and says, " I am 30-percent disabled."
The Veterans' Administration says, "We don't think so; we think
you are only 20 percent."
H e says, " I appeal."
• The court says, "The Veterans' Administration is right. You are
only 20 percent."
Six months later he has an examination or goes to a private physi-
cian for treatment. H e gets more evidence that lie is 30-percent disr
abled and he comes in and says, " I am 30 percent." They say, "You
are wrong." And he says, " I appeal."
I n the area of pension the man says, " I am permanently and totally
disabled." The VA says, "We don't think so." H e says, " I appeal."
The court affirms the Veterans' Administration. Four months
later he gets a little bit worse and he files another claim, or let us
say that the court allows his case. I n either of these contingencies,
either in compensation or in pension, a year after the court has allowed
it, the Veterans' Administration examines the man, which they do
periodically. Now they reduce his compensation. He has the happy
experience of having been sustained once before by a court. H e says,
" I appeal." We are back in court again.
Or in the pension area the court says, "This man is entitled to per-
manent and total disability; he is entitled to pension."
One year later, by virtue of a provision in the law the man is cut
off again. H e says, " I appea.l," when the Veterans' Administration
cuts him off.
We begin with the premise we are all interested in the same thing.
We know the proponents of judicial review have the best interests of
the veteran at heart, and I think the record will establish conclusively
that the American Legion and other organizations who oppose it have
the best interests of the veterans at heart, however, we feel that the
disadvantages which would flow from judicial review would outweigh
the advantages.
Now, I would like to refer to some of the questions or to one point
that arose during the questioning and the testimony given by a wit-
ness yesterday, a n d that is whether or not there is a unique situation
with which we are faced. This is important. I t is important not in
that if you found there were other cases in which judicial review was
precluded, you wouldn't want to provide judicial review, but it is
important to know there are other cases so we can consider this ques-
tion objectively and without any emotional appeal "Why should the
veteran be the only man that doesn't get a day in court."
When a representative of the American Bar Association testified
before this committee in 1960 he said:
Unfortunately, there are other agencies whose actions are equally final and
unreviewable.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1953

Then he went on and gave some examples. Incidentally, the mem-

bers of this committee and the veterans stand side by side on this
point. If a Member of Congress, as I understand it, is injured in
the course of his employment he has the right to try to seek work-
men's compensation. That right is adjudicated by the Bureau of
Unemployment Compensation. If he is dissatisfied, he can appeal
to the appeals board, which is an entity quite similar to the Board
of Veterans' Appeals. The appeals board says to the Federal em-
ployee, in this case a Member of Congress, "We deny this claim."
H e may not take it into court. As I understand it, there is no
judicial review of that decision and I affirmed this informally with
representatives of the Department of Labor.
We think that our fears and our apprehensions that more would be
lost than gained have been borne out by the type of proposals which
have been made. We think that these bills reflect and support our
feelings.
F o r example, there is a proposal to establish a Court of Veterans'
Appeals and this has a certain amount of appeal. You avoid, for
example, the difficulty of overburdening Federal courts. You create
a court with expertise, which would certainly be desirable. But if
you are going to pattern your court after the Court of Military Ap-
peals, a court with which I am generally familiar, then you do many
things which we point out in our statement of opposition. You
would be limited to questions of law. The Court of Military Appeals
is limited to questions of law.
You say, "Let's not do that and make a variation and go on the
preponderance of evidence," to which we also find objection. I n
addition to that, you would establish rigid, formalized procedures
at the lower adjudicating level. F o r instance, in the court-martial
procedure from which appeals are taken to the Military Court of
Appeals, there is a very rigid, formalized procedure. Rules of evi-
dence are closely adhered to, and the proceedings become adversary in
nature. The Government agent is trying his best to win his case,
to beat this serviceman, to succeed in the Court of Military Appeals.
This isn't true in the Veterans' Administration. This is an agency
that has been established by the Congress not to deprive rights, not
to limit liberty, but to grant in liberal fashion the benefits you want
to bestow, and again, not without exception, however, we find the
Veterans' Administration is so motivated.
Lastly, Mr. Chairman, I would say, "Does the American Legion
have a constructive suggestion on this?" You say you are not satis-
fied. When we came before you the last time we had one specific
suggestion and one general one. The first specific one was to take
the Board of Veterans' Appeals out of the nonjudicial functions
in which it engaged. We gave you the case, for example, of the
fact that the Board of Veterans' Appeals is coordinated with other
V A services on the promulgation of a regulation. A regulation has
to be consistent with the law to be effective. When the Veterans'
Administration would be writing a regulation they would coordinate
it with the Board of Veterans' Appeals. They would get the con-
currence of the Board of Veterans' Appeals. Subsequently, we might
find ourselves before the Board of Veterans' Appeals arguing a par-
1954 JUDICIAL REVIEW OF VETERANS' CLAIMS

ticular regulation is not in accord with the law. This, of course,

was a fruitless endeavor because this very Board had said, "Yes, we
think it is in accord with the law." They said this when they were
coordinating it, so our specific suggestion at that time was "Remove
the Board of Veterans' Appeals from the policymaking and nonjudi-
cial type functions." We are not sure to what extent that has been
done.
I think that the VA witnesses are in a much better position to tell
the subcommittee to what extent it has been done, but we know it has
been done to some degree.
Tied in with that specific suggestion was " T r y to make the Board of
Veterans' Appeals a little more independent." By "independent" I
mean not so closely related to the rest of the Veterans' Administration,
especially the rest of the adjudication process. Remove the possibility
of team—no, not team—atmosphere, because I couldn't document the
fact that it exists. I think that the Board of Veterans' Appeals readily
reverses regional offices when it feels that they are in error; but there
is the possibility of their just going along because somebody else de-
cided it, and it is, after all, the same agency.
B u t take this matter of nonjudicial functions and try to make them
independent therefrom, because we think this is what Congress in-
tended when it established the Board in the beginning.
The general suggestion that we have, and it isn't worth very much
in the way of constructive criticism at this time, is to continue to try
to improve the Board administratively. W e think there is room
for improvement. We are not completely satisfied with all decisions.
So we say, "Try to continue to improve the Board administratively as
much as you can." For example, we don't think they have enough
personnel. W e think they ought to have more personnel, items such
as this.
Let me conclude my prepared part of the statement, Mr. Chair-
man, to the extent that it is prepared, with a comment or two on claims
representatives. I would like at a very early but subsequent date,
with the subcommittee's permission, to introduce into the record an
appraisal that has been made of the activities of claims representa-
tives by no less a body than a committee established by the Attorney
General of the United States. I know of one other such appraisal that
was made by the Hoover Commission. W e may, when I review my
file back at the office, find more of these, but this Committee on Admin-
istrative Practices operating under the Attorney General of the United
States, investigated the adjudicative process of the Veterans' Admin-
istration and came to the conclusion that there had developed a special-
ties bar of claims representatives of nonlawyers who, in the opinion
of this particular committee do an excellent job because of their expe-
rience largely in protecting the rights of the persons seeking benefits
from the Veterans' Administration. If I may have permission to
introduce that. Mr. Chairman, I will do it at a very early but subse-
quent date.
Mr. KORNEGAT. Yes.
Mr. COECORAX. The last comment I would make on claims repre-
sentatives is on the question of qualifications. I can't speak for any
other organization but I will briefly describe the organizational ar-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1955

rangement in the American Legion. Our departments, which are our

State organizations, are almost autonomous. They are almost com-
pletely independent, that is, in almost all matters. Therefore, the
American Legion claims representatives in Florida, in North Caro-
lina, or in Pennsylvania, for whose ability, incidentally, we would
probably all vouch, do not come under my direct supervision and con-
trol. They come under the direct supervision and control of the de-
partment service officer in his particular State. H e certifies to me,
in writing, that this man, when he is seeking accreditation before the
Veterans' Administration, is qualified to do the job. Now, to be
frank with you, I take his word. I take the word of Mel Dixon in
Florida, for example, and Mark Markowitz in Pennsylvania, t h a t
this man is qualified and I so certify to the Veterans' Administration.
There is a distinction here, of course, between claims representatives
as a group and attorneys. An attorney is in private practice with
emphasis on the "private." There is generally no one looking over
his shoulder, except the client, to make sure that every piece of work
he does conforms to the circumstances. Of course, we have committees
on grievances and we have the courts generally overseeing the activ-
ities of attorneys, but there is a distinction here. The claims repre-
sentatives are employees. They have to produce. They have to be
capable generally. They have to be competent. And, generally, if
they are not competent they won't last long as claims representatives.
So I think that when we are discussing claims representatives, we
should recognize, first of all, that this very subject has been investi-
gated by some other body. Of course, the conclusion is not binding
on this subcommittee. B u t very favorable appraisals have been made.
Secondly, these claimant representatives are employees and under
the supervision and control of some one person who will make sure
they do an adequate job.
Mr. Chairman, these are all the comments I have to make on this
particular subject.
I would be glad to try to answer any questions you might like to ask.
Mr. KORNEGAY. Mr. Haley.
Mr. HALEY. Mr. Chairman, I do not have any questions to direct to
this witness. H e certainly has made a very able presentation of
view on the matter at issue. H e is very competent, as he has always
been, in his testimony and he certainly has made a fine presentation.
Mr. CORCORAN. Thank you.
Mr. KORNEGAY. Mr. Saylor.
Mr. SAYLOR. Mr. Corcoran, let me say to you that, as always, you
have presented your views, the views of your organization, with great
ability. I feel that the Veterans' Administration and the veterans of
this country have been fortunate you have been selected by the Amer-
ican Legion to be the director of their National Rehabilitation Com-
mission.
Mr. CORCORAN-. Thank you very much.
Mr. SAYLOR. YOU and I may disagree on this matter. I still respect
your opinion and I feel confident that the views you have expressed
are what you sincerely believe are in the best interests of veterans of
this country.
Mr. CORCORAN. T h a t is true, Mr. Saylor.
1956 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. SAYLOR. However, I must also state that I hope you will be as
frank with me and give me the privilege of disagreeing with you, as
you have disagreed with me.
Mr. CORCORAN. The hearing is off on a new and happy note. Yes,
Mr. Saylor.
Mr. SAYLOR. I n the first place, I do not want to question your ability
as a lawyer. I would like to call to your attention the example which
you gave of a Member of Congress being injured and filing his case
with the Commission to determine whether or not he could receive
compensation. Your analysis is correct. The final decision is not
subject to review. However, if any Member of Congress or other
person is dissatisfied with the position of the Commission, they may
proceed to file a claim with the Court of Claims and if the court
rinds the Commission was arbitrary and/or capricious the hearing is
heard de novo.
Now, in the statement which you filed a couple of years ago, you
had attached at that time, as you have attached today, on the last
page, you have what is entitled "Appeals Presented by the American
Legion. Washington Staff," and it runs through the vears 1955 to
1959.
Do you have the figures for 1960 and 1961 ?
Mr. CORCORAN. Sir, I can supply the figures for 1960. I only have
1961 with me. Would that be satisfactory ?
Mr. SAYLOR. T h a t is perfectly satisfactory.
Mr. CORCORAN. I n the fiscal year 1961, the American Legion held
powers of attorney in 10,113 cases decided by the Board of Veterans'
Appeals. Incidentally, the same time the Board of Veterans' Appeals
was considering 34,098, which means the American Legion held powers
of attorney in a little bit less than a third of all cases heard. Of
course, Ave had a much greater percentage of the cases represented
because many of the '34,000 that the Board of Veterans' Appeals heard
were not represented.
Now, I would assume you would like to know the percentage of al-
lowance and remands.
Mr. SAYLOR. I would like to know the number of reversals and re-
mands that you had.
Mr. CORCORAN. Of the 10,113 cases, 1,453 were allowed. If my in-
formation on this is no worse than my information on Members of
Congress and workmen's compensation, it comes out to 11.4 percent.
W e had 964 cases remanded, which is a percentage of 9.5 percent, an
overall percentage of 20.9 percent.
Mr. SAYLOR. And you will supply the committee with the figures
for 1960?
Mr. CORCORAN. Yes, sir.
Mr. SAYLOR. NOW, of those 30,113 cases you presented, can you tell
us how many dissenting opinions you had ?
Mr. CORCORAN. N O , sir; I do not know the answer to that. We
have not nor are we keeping a record of dissenting opinions.
Mr. SAYLOR. I t would not take a great deal of bookkeeping to do
it because it is n ot that great an amount.
Mr. CORCORAN. Of course, a much more difficult question, and a
much more important one, is "How many cases do we think there
should have been a dissent in and there wasn't?" I t seems to me that
is even more important.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1957

On that point, I suppose this would be a hint on how the American

Legion feels. F o r a 15-month period we selected, because we were,
by the merits of the case, impelled to do so, 60 cases and submitted
them to the Board of Veterans' Appeals asking for reconsideration.
I n other words, during this 15-month period there were 60 cases we
felt that certainly should go back to the Board of Veterans 1 Appeals:
80 of these were at the instigation of our staff in Washington and 30
were at the instigation of department service officers throughout the
country or by some Member of Congress, and we happened to hold
the power of attorney.
Of the 30 cases presented as a result of my staff's submission, 9
were allowed and 9 remanded. Of the nine remanded, two were ulti-
mately allowed after development and two are still pending final
action.
Now, of the 30 cases suggested either by Legion service officers
throughout the country or by Members of Congress, 4 were allowed
and 4 were remanded. Of those remanded, one was ultimately al-
lowed after further development.
Mr. SAYLOR. Now is it your philosophy as director of the National
Rehabilitation Commission of the American Legion that if a member
who served in the armed services can prove service-connected dis-
ability , he should be allowed his claim ?
Mr. CORCORAN. I wonder if I misunderstood the question. I t didn't
seem to me I could possibly answer it anyway but "Yes." Would j r ou
repeat the question, please?
Mr. SAYLOR. My question is whether or not you believe that a mem-
ber who served in the Armed Forces of the United States in time of
war, if he proved his claim, should be entitled to it?
Mr. CORCORAN. Yes.
Mr. SAYLOR. NOW, with that answer, Mr. Corcoran, I cannot pos-
sibly see any argument that you have given opposing the establishment
of a Veterans Court of Appeals. I cannot see how it can hold water
for this reason: You state that all that this would do would be to-
substitute one group of men's decisions for that of another group-
W i t h this as a major premise and with your affirmative statement
to my question, the only thing that the court could do would be to
see to it that some people who have established their claims had them
allowed. Now, for this basic reason I cannot see how either you, or
your organization, or the Veterans of Foreign Wars, can come here
and oppose the action of this committee in attempting to substitute
someone else's decision in cases where a veteran has been denied relief
when you, by your own statement, admit that the only thing that
can happen is that these people would have their claims allowed.
Mr. CORCORAN. Let me try one last time, Mr. Saylor, to explain it to
you. No, but seriously my criticism or my comment on the point
you just raised, the substitution of judgment, goes to the question of
what scope are you going to give the jurisdiction of this new court.
T h a t is where I make this question. I say the jurisdiction of this
new court will have to be determined upon what grounds you set
u p for review. I say the ordinary ground is that the court will only
reverse in cases of a lack of substantial evidence, but if you don't
do that, and make a "preponderance of evidence rule," then I said
that all you are doing is substituting judgment.
1958 JUDICIAL REVIEW OF VETERANS' CLAIMS

Now let me take this point a little bit further. We recognize, Mr.
Say lor, this point.
Mr. SAYLOR. Before you go any further, isn't it very clear that when
you substitute one person's decision for another, the answer is that
you grant a benefit ?
Mr. CORCORAN. This could be. This could be. B u t I mean I would
just like to make this point.
Mr. SAYLOR. All right, now. You explain why you are opposed to it.
Mr. CORCORAN. Yes. I really haven't gotten to the answer yet. All
I want to do is first establish the context in which I make this state-
ment. The context is the subcommittee should know when they estab-
lish a Court of Veterans' Appeals with this kind of review power they
are doing something that is not generally done. They are not follow-
ing the pattern of the Court of Military Appeals. They are not fol-
lowing the pattern of the ordinary judicial review of administrative
agencies. T h a t is the context in which w7e make this statement.
Now, what we fear from this type of thing, Mr. Saylor, is, and we
could be wrong on this, but I don't think so, that there will inevitably
follow a formalizing of the adjudication process of the Veterans'
Administration. I think there will inevitably follow a tightening up,
if you will, or at least a systematizing of a set of rules of evidence,
because this is the nature of a court, a court is bound by the rules of
evidence.
Now, if this occurs there would be more veterans who could no
longer prove they were entitled to benefits than the veterans you have
in mind. I n other words, where we and the proponents of this bill part
ways is not in the beginning where we say we want to do something
that will help veterans, not at the next step where we reach a con-
clusion that such an action would help some veterans, but it is after
that when we say that it "would hurt more than it would help." I
don't deny for a minute there will be some benefits or some benefited
but we think the overall impact and result will be detrimental.
Mr. SATLOR. Well, I can assure you that there is no intention on
the p a r t of any of the proponents of this legislation to deny or deprive
any veteran of any right that he now has. W h a t we are trying to do
by this piece of legislation is to expand it and give him an additional
allowance.
Mr. CORCORAN. Mr. Saylor, what about the finality of this court?
Is its decision going to be final ?
Mr. SAYLOR. On the evidence that has been submitted up to that
time, the answer is "Yes."
Mr. CORCORAN. I t cannot get reconsideration ?
Mr. SAYLOR. I didn't say it could not get reconsideration.
Mr. CORCORAN. Well, reconsideration, in the context I intended to
use it, means asking the Veterans' Administration to look again at its
decision in the light of the evidence that was of record at the time
it was made. T h a t is what all of these cases are. I n every one of these
cases the Board said, "We have taken a second look and we admit we
were wrong."
Mr. SAYLOR. The very fact that the Board has admitted they were
wrong in the few cases that you have indicates to me the Board needs
somebody to supervise it and to look over their shoulder.
Mr. CORCORAN. Mr. Saylor, I agree with you.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1959

Mr. SATLOR. The very fact that this Board would know that some-
body else is going to take another look at it would already assure you
that those cases wouldn't have to be reconsidered by the Board.
Mr. CORCORAN. Mr. Say lor, I wonder if there is any Federal agency
that has been more looked at than the Veterans' Administration?
The General Accounting Office is always looking at their adjudication
of cases. We see every case in which we have power of attorney.
Members of Congress see many, many cases. One of our suggestions
which I failed to deliver before for improving the Board of Veterans
Appeals, would be if this House Veterans' Affairs Committee would
perhaps increase and emphasize its activities in the legislative over-
sight field. F o r example, if we feel the Board is misconstruing the
soundness at induction, why don't we have a hearing on it, why
don't we have cases and get this straightened out. I have found the
Board to be amenable to suggestions of this committee.
Mr. SATLOR. Yes, but they are amenable only when we take, as old
Teddy Roosevelt said, the big stick to them.
COUNSEL. If I may, Mr. Savior, I think the record should be clear.
Mr. Corcoran very well knows that although the General Accounting
Office can look at cases all day long it has no power whatsoever to
change a comma, a. period, or the substance of any case.
Mr. CORCORAN. Mr. Patternson is right. Let me answer that he is
right as far as he goes, but if he had ever stopped when he said they
had no power, I would have fainted. They have plenty of power in
that the recommendations, in quotes, that the General Accounting
Office has made have resulted in profound results in the adjudication
process of the Veterans' Administration. They have loads of power.
Mr. SATLOR. They have power, but it does not affect the finality of
a decision, nor does any action of a Member of Congress. I have only
appeared down there twice.
Mr. CORCORAN. Maybe that is the trouble, Mr. Saylor.
Mr. SATLOR. Let us get back to your original statement. You be-
lieve in a single agency concept in the field of veterans' affairs. I have
checked the record and I find that when the act was presented to this
committee to allow the insurance cases to be taken to court, the Ameri-
can Legion supported that action. Now, what comment do you have to
make on that ?
Mr. CORCORAN. I think our act in there would be tradition of the
history of the American Legion. The record will show the American
Legion has been for judicial review at times. W e have had a reso-
lution which said the Veterans' Administration should not forfeit
the rights of a man and be able to make a final decision. H e should
be able to take that into court.
I n other words, what I am saying is we have a general philosophical
basis of the one-agency concept, to which there can be exceptions.
Now, I think insurance is an exception. I think that the nature of an
insurance case poses an issue which can be terminated, which isn't
subject to reopening, and I think that the adjudication process in the
Department of Insurance is different than that in the Department of
Veterans Benefits. You don't appear before boards and so on. I think
it is different.
Mr. SATLOR. NOW, with the statement that you made last time, at
present a veteran may reopen his claim at any time upon the submis-
1960 JUDICIAL REVIEW OF VETERANS' CLAIMS

sion of new material evidence. How many times has the American
Legion, through its service officers, gone out and gotten new and mate-
rial evidence and filed it with the Veterans' Administration and then
have them time after time say to you and to your service officer, "This
is cumulative."
Mr. CORCORAN. Of course I don't know how many times, but I think
it happens with a fair degree of frequency.
Mr. SAYLOR. I n other words, it happens with such a degree of
frequency that it is the exception you remember rather than the
times it was granted ?
Mr. CORCORAN. NO. No. Of course not. But, Mr. Saylor, the im-
portant question is, "How many times did the American Legion feel
the evidence was new and material and it wasn't cumulative." If a
man submits a statement from a doctor trying to establish service
connection for arthritis in 1942 and the doctor's statement says, " I
examined the man in 1947 and found arthritis of the spine; he said
these pains began in 1942." The Board of Veterans Appeals denies it.
Six months or a year later the man comes in with another doctor's
statement saying the same thing, " I examined him in late 1947," arid
he gave this history. I say that evidence is cumulative. I t is not new
and material. I t says exactly what the first piece of evidence said. I t
doesn't justify a reopening of the case, I don't think.
Mr. SAYLOR. I will agree with you in that case. B u t how about the
doctor that says, " I have been examining him since 1942."
Mr. CORCORAN. That sounds like new and material evidence.
Mr. SATLOR. I can show you a number of cases in which they have
turned down the right.
Now, with that situation in mind, we added section 4056 to H.R. 775.
According to you, the way that particular legislation is drafted it was
not a very good job.
Mr. CORCORAN. I am convinced of that. I think this is probably a
masterpiece of blundering, if that is really what was intended.
Mr. SAYLOR. I n that case, if this is a masterpiece of blundering, I
am the author.
Mr. CORCORAN. Oh, my heavens, I want to withdraw t h e statement.
I didn't know who it was.
Mr. SAYLOR. I am perfectly willing to have it operated upon by the
expertise of the national rehabilitation director of the American Le-
gion and come u p with the answer that will do what we tried.to doJ
Now, we admit that we are not very good u p here on this committee,
but we try. The bill was drafted by an unusually skilled lawyer in the
Legislative Counsel's Office. I seriously doubt you could sustain yourr
interpretation of this section.
Mr. CORCORAN. Mr. Saylor, when the Legion changes its position
so that we are supporting either judicial review or a special court, I
will run up here and try to help get this language improved.
Mr. SAYLOR. Let us put it this way. You folks in the American
Legion might have no concern. We are going to have a court of vet-,
erans' review or appeals. Now, we can have a "masterpiece of blun :
dering," if you want it, or we can have a piece of good legislation
and you can be like the proverbial ostrich if you want to stick your
head in the sand and say, "We won't do anything about it." All well
arid.good. That.is your choice. But do not come complaining when
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1961

we pass the act. This is what is going to happen. I am satisfied

after talking with the chairman and talking with members of this
committee we are going to get it out of this committee and get it on
the floor of the House. If you want to get a good bill let us have the
benefit of the thinking you have down there.
Mr. CORCORAN. Your statement puts a different light on the nature
of this hearing, doesn't it ?
Mr. SAYLOR. I do not know if it puts a different light on it or not,
but this is not just a marking of time because we are not marking time
any more. We have collected evidence sufficient, in my opinion, to
justify the establishment of this court.
Mr. CORCORAN. Mr. Saylor, if we were convinced that this bill, or
one similar, would be presented to the President, we would suggest
amendments.
Mr. SAYLOR. Well, we may not get it passed, but you will have a real
fight on the floor to keep it from being passed.
Mr. CORCORAN. I wish I could get you as interested in 1 of the 43
pieces of Legion legislation that we would like to get enacted.
Mr. SAYLOR. Well, this is no quid pro quo. We will look at those.
Mr. CORCORAN. Maybe we can work something else out.
Mr. SAYLOR. I will look at those with just as jaundiced an eye as
you are looking at this legislation.
Mr. CORCORAN. Which came first, I wonder.
Mr. KORNEGAY. Mr. Corcoran, if I might interrupt my good friend,
Mr. Saylor, it is obvious we cannot finish with you Defore the hour of
12, and I would like to inquire whether or not you can come back
Monday morning at 10 o'clock ?
Mr. CORCORAN. I would not be able to, sir, because we begin a rather
large meeting on Sunday of 700 persons. So therefore we cannot come
back next week. I would have to check to see if I am committed on
some out-of-town trip. My present feeling is that I would be avails
able all the following week, not next week, Dut the week after.
Mr. KORNEGAY. The week after.
Mr. CORCORAN. YOU don't think there is any possibility that you
have finished with me?
Mr. KORNEGAY. N O ; I wanted to request additional information
from you, and I think probably you need some additional time.
Mr. CORCORAN. Mr. Chairman, I hope the subcommittee doesn't find
my f acetiousness offensive.
Mr. KORNEGAY. Not at all. On the contrary.
Well, we will work this out later. Let me ask you if you can bring
us some more information. You have indicated that the bill here
that we have been talking about, H.R. 775, differs substantially with
the act creating the Court of Military Appeals and also the Adminis-
trative Procedure Act of 1946, as amended, I believe, and authorizes an
appeal and judicial review to various administrative agencies.
I would like to ask you if you can prepare or be prepared to make
some statement pointing out the differences in those for us?
Mr. CORCORAN. Yes, sir.
Mr. KORNEGAY. And also give some suggestions, if you care to make
them, as to how we might make the bill more palatable along the lines
you were discussing.
Mr. CORCORAN. I would be glad to do that. Mr. Kornegay.
S00S2—G2 16
1962 JUDICIAL REVIEW OF VETERANS' CLAIMS

(The material requested follows:)

T H E AMERICAN LEGION,
REHABILITATION COMMISSION,
WASHINGTON, D.C., March 8,1962.
Hon. HORACE R. KORNEGAY,
Chairman, Special Subcommittee, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DEAR CONGRESSMAN KORNEGAY : D u r i n g t h e h e a r i n g s on judicial review of de-
cisions of the Administrator of V e t e r a n s ' Affairs you asked t h a t we submit addi-
tional information on several points which h a d been raised. W i t h your per-
mission I will now present for your consideration our comments on those points
a n d on several other matters which w e r e discussed during t h e hearings.

American Legion workload in Board of Veterans' Appeals

Reversals Remands
Fiscal year Total
number
N u m b e r Percent N u m b e r Percent

Decisions b y B o a r d of V e t e r a n s ' Appeals:

I960--. 31,136 4,034 10.03 3,997 10.02
1961.- 34,698 3,831 11.04 3,077 8.86
Appeals presented by American Legion in field:
1960 6,494 520 8.0 453 6.09
1961- - 5,987 549 8.1 507 8.04
Appeals presented b y American Legion. W a s h i n g t o n staff:
1960 5,505 629 11.4 529 9.6
1961.. _ 4,126 604 14.06 457 11.07
Appeals presented b y American Legion, Field a n d W a s h -
i n g t o n staff c o m b i n e d :
1960 -- 11,999 1,149 9.05 982 8.01
1961-_ 10,113 1,153 10.14 964 9.05

T o t a l con-
sidered by T o t a l cases
Fiscal year Board of represented Percent
Veterans'
Appeals

Cases considered b y B o a r d of V e t e r a n s ' Appeals i n w h i c h vet-

erans h a d representation:
1960 39,136 27,826 71.1
1961- 34,698 25,225 72.2

Cases con- Cases i n Percent in

sidered b y w h i c h Amer- which
Fiscal year B o a r d of i c a n Legion A m e r i c a n
Veterans' had power Legion
Appeals of a t t o r n e y h a d p o w e r
of a t t o r n e y

Cases considered b y B o a r d of V e t e r a n s ' A p p e a l s i n w h i c h t h e

A m e r i c a n Legion h e l d p o w e r of a t t o r n e y :
1960 39,136 11,999 30.6
1961 34,698 10,113 29.01

Total Represented
Fiscal year represented b y American Percent
cases Legion

P e r c e n t a g e of r e p r e s e n t e d cases before Board of V e t e r a n s ' A p -

peals i n w h i c h t h e A m e r i c a n Legion held power of a t t o r n e y :
1960. 27,826 11,999 43.1
1961 _ ' 25,225 10,113 40.09
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1963

The above supplements the information we submitted on February 24, 1962.

It is pertinent at this point to present the workload of the U.S. Court of
Military Appeals for the fiscal year July 1, 1960 through June 30, 1961:
Gases filed
Petitions 954
Certificates (JAG) 24
Mandatory 1
Total 979
Disposed of 1, 010
Pending completion 118
Oral arguments heard 87
Written opinions rendered 134
AVAILABILITY OF COURT REVIEW TO FEDERAL EMPLOYEES

During our testimony we stated that there are a number of other situations
in which the decision of the administrative agency is final. We stated that a
Member of Congress, being a Federal employee, could not secure court review
of a denial under the Federal Employees Compensation Act of a claim for
compensation for injuries sustained in the course of employment. One of the
members of the subcommittee disagreed, and stated that a claim for injuries
suffered in the course of Federal employment could be entertained in the U.S.
Court of Claims. The cases, which I have found support the accuracy of our
statement that an administrative decision under the Federal Employees Com-
pensation Act is final and conclusive and not subject to review by any court or
official of the United States. The statute (5 U.S.C. 793) expressly makes such
decisions final. In Nolen v. U.S., U.S. Court of Claims (109 F. Supp. 391),
January 13, 1953, the court held with reference to the finality clause, "In view
of this provision of the statute, it is clear that this court does not have jurisdic-
tion to review the decisions of the officials of the U.S. Employees' Compensation
Commission."
The finality clause of the Federal Employees Compensation Act was tested in
a U.S. district court also. In Ca.l6.eron v. Tobin (187 F. 2d 514) it was held
that Congress could and had precluded judicial review. Certiorari was denied
by the U.S. Supreme Court (341 U.S. 935; rehearing denied 242 U.S. 843).
As we said during the course of the hearings, the other finality clause situa-
tions are cited only to show that there are circumstances when it is generally
considered desirable to preclude judicial review.
QUALIFICATION A N D COMPETENCE OF CLAIMS REPRESENTATIVES

During the hearings on judicial review a question was raised on the qualifica-
tions and competence of claims representatives, usually nonlawyers, who repre-
sent persons before the Veterans' Administration. We offered to furnish ap-
praisals by disinterested parties. With your permission I would like to call
attention to five sources which compliment highly the activities and results of
claims representatives.
1. The Attorney General's Committee on Administrative Procedure Monograph
No. 2, The Veterans' Administration (p. 83, "Service Organizations") :
"No complete picture of the organization or operation of the Veterans' Admin-
istration can be drawn without reference to the veterans' service organizations,
which have assumed an important position in relation to the Administrator. It
is provided by statute (49 Stat. 2031) that: 'The Administrator of Veterans'
Affairs is hereby authorized to recognize * * *' ", etc.
In the administration of veterans' affairs, both in relation to individual claims
and to the broader field of policymaking, these organizations play a significant
part.
"As already indicated, in a large proportion of cases in which hearings or
arguments are requested, claimants are represented by service organizations.
Formerly, representation was by private claims agents. In the past decade, how-
ever, the function of representing claimants before the Veterans' Administration
has increasingly fallen to the various service organizations. These organiza-
tions cannot, by statute, charge fees for representation.
1964 JUDICIAL REVIEW OF VETERANS' CLAIMS

"Their representative staffs are ordinarily headed by a chief lawyer ; there are
also medical consultants on the service organization staff. Most of the actual
representation of claimants before the various Administration boards, however,
is performed by nonlawyers, experienced in matters pertaining to veterans'
affairs. The result has been a salutary one : Representation is expert, nontechni-
cal and aware of the precise issues. The service organization representatives,
devote their full time to the task of serving claimants, and their performances,
thus far observed, have been of the highest caliber. It is apparent that the
individual case is thoroughly studied and the facts, no matter how detailed and
; medical in form, well learned. Aided by intimate knowledge of the methods of
the Administration, the service organization representatives have developed an
able specialized bar.
"The service organizations, however, perform a role more important than that
simply of advocates in a particular case. They have further become an integral
part of the administration of the veterans' laws. Each organization maintains
offices in the Veterans' Administration itself. In many respects, they may act
as a buffer for the Administration. In practice, they may winnow out the ir-
relevant ; they can and do discourage unnecessary appeals and unnecessary pro-
duction of witnesses. (Footnote 0i3: It is to be noted, however, that the sen-ice
organizations follow the principle that the claimant 'has a right' to appeal, or to
present any issues he wishes. Persuasion rather than refusal is the organiza-
tions' policy). Thus the service organizations may perform an important func-
tion of clarification and expedition."
The members of the Committee at the time the final report was submitted
•were:
Dean Acheson, Chairman
Francis Biddle, Solicitor General
Prof. Ralph F. Fuchs, Washington University Law School, St. Louis
Dean Lloyd K. Garrison, University of Wisconsin Law School
Chief Justice D. Laurence Grover, U.S. Court of Appeals for the District
of Columbia
Prof. Henry M. Hart, Jr., Harvard Law School
Carl MacFarland, Washington, D.C., former Assistant Attorney General
Judge James W. Morris, U.S. District Court for the District of Columbia
Prof. Harry Shulman, Yale University Law School
Dean E. Blythe Stason, University of Michigan Law School
Arthur T. Vanderbilt, New Jersey, former president of American Bar
Association
Prof. Walter Gellhorn, Columbia University Law School, Director of Staff
2. The Trundle Engineering Co., in its report to the Commission on Organiza-
tion of the Executive Branch of the Government (Hoover Commission) (House
Committee Print No. 14, 81st Cong., 1st sess., March 24, 1949, at pp. 23 and 24,
said) :
"The full-time representatives of these accredited organizations do valuable
work in connection with cases that otherwise would have to be done.by Veterans'
Administration personnel. As intermediary counsel and later as advocate, they
save time for the contact officers;, the rating boards, and adjudicators. The
Veterans' Administration provides adequate office space and facilities in its
regional, branch, and central offices to such organizations as are set up to provide
trained and ethical representation. There are at the present time approximately
3,600 accredited representatives stationed in the various offices."
At page 195 of the same report the following is found :
"6. Examination of this program indicates that it is sound both in intent
and operation. The accredited representatives are responsible and mindful of
their obligation. For the most part they have undergone a course of training
before assuming the duties of service officers."
3. The Hoover Commission in its report to Congress in March 1955 said, at
page 42 of the section dealing with "Legal Services and Procedure":
"It (the task force) found that such organizations as the American Legion
and the Veterans of Foreign Wars perform valued assistance to veterans in pre-
senting their claims before the Veterans' Administration."
4. The management engineering firm of Booz, Allen & Hamilton also remarked
upon the service provided by veterans' organizations. At page 424 of House
Committee Print No. 322, 82d Congress, 2d session, it was stated:
"Veterans' organizations are organized to provide needed representation of
veterans in all Veterans' Administration offices. In this respect, they are per-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1965

forming a very worthwhile service and, therefore, such functions should be

placed in their hands."
5. In a letter dated February 8,1955, to Mr. Alfred H. Corwin, Mr. B. E. Odom,
General Counsel of the Veterans' Administration, said:
* * *, it was clearly the purpose of the Congress to discourage the handling
of claims by attorneys and pension agents probably for reasons which were
observed under the pension laws prior to.the enactment of the War-Risk Insur-
ance Act amendment of October 6,1917. The statute has, of course, been amended
from time to time since then, and at all times it clearly has recognized that such
claims could be presented by representatives of recognized service organizations
or by employees of the VA or its predecessor agencies * * *."
In another letter dated February 14,1955, to Mr. Corwin, Mr. Odom said :
"While it is true the law restricts a fee which may be paid to an attorney,
as indicated in my previous letter, he may be paid his actual expenses as this
would not be a violation of the penal provisions of the statute. On the other
hand, the service organizations have very well qualified representatives who will
present claims at no expense to the claimant. I think it can be said generally
that their representatives are better qualified by experience and knowledge of
VA law and procedures than the average lawyer. However, this may be said to
be only a personal opinion."
T H E F I N A L I T Y C L A U S E PROPOSED BY H . B . 7 7 5

One of the major objections of the American Legion to the proposal to provide
court review of decisions of the Administrator of Veterans' Affairs is that it
would seem that any decision by the court would have the characteristic of final-
ity. During the hearings a member of the subcommittee requested our opinion
of the provision beginning at line 8, page 7, dealing with the authority of the
Board of Veterans' Appeals. We replied that the language was ambiguous and
left us completely uncertain as to its meaning.
I have consulted Report No. 2031. which accompanied H.R. 12653 when that
bill was submitted to the House in the 86th Congress, 2d session. That report
establishes that the provision relating to the authority of the Board of Veterans'
Appeals was not intended to affect the finality of the court decision. The
language contained in H.R. 12653 was identical, in respect to the provision under
discussion, to that contained in H.R. 775. The report on H.R. 12653 stated on
page 1: "The decisions of the court shall be final. This, for the first time, sub-
jects decisions of the Administrator of Veterans' Affairs to review by a separate
and independent agency." Although I am still in doubt as to the intent of the
provision relating to the authority of the Board of Veterans' Appeals, it is clear
from the report submitted on H.R. 12653 that it was not intended to weaken or
dilute the finality of a decision by the court.
The section beginning at line 23, page 4 of H.R. 775 dealing with review by
the court states: "(b) The court may decline to review any decision of the
Board if it appears that no material error of fact or law is involved in such
decision." When one considers that, because of the volume of work the Com-
missioner, as a practical matter, will be most influential in deciding whether
the Administrator's decision will be reviewed, the undesirability of the finality
clause is recognized most vividly.
STANDARD OR SCOPE OF REVIEW

In the course of the hearings we were asked to comment upon the standard or
scope of review proposed by bills such as H.R. 775 and that employed in the
statute establishing the Court of Military Appeals and the Administrative Proce-
dure Act.
With respect to the Court of Military Appeals, 10 United States Code Anno-
tated S67(b) sets forth the category of eases subject to review by the court.
The last sentence of section (d) sets forth the standard or scope of review:
"The Court of Military Appeals shall take action only with respect to matters
of law."
With respect to the Administrative Procedure Act, a discussion of the standard
or scope of review is found in the Attorney General's Manual on the Administra-
tive Procedure Act (1947). At page 109 the Attorney General stated: "Clause 5
directs the reviewing courts to 'hold unlawful and set aside agency action, find-
ings, and conclusions found to be * * * unsupported by substantial evidence in
1966 JUDICIAL REVIEW OF VETERANS' CLAIMS

any case subject to the requirements of sections 7 and 8 or otherwise reviewed

on the record of an agency hearing provided by statute.' This is a general
codification of the substantial evidence rule which, either by statute or judicial
rule, has long been applied to the review of Federal administrative action.
Consolidated Edisonv. NLRB, 305 US 197 (1938)."
We feel that the standard of review of factual determinations proposed by
bills similar to H.R. 775 is inconsistent with that provided in statutes establishing
special courts such as the Court of Military Appeals and that provided in the
Administrative Procedure Act.
The standard texts on administrative law seem to support our position. They
indicate that even where statutes purport to bestow upon the court a broader
authority the judiciary is reluctant to accept it. In "Minimum Standards of
Judicial Administration," published in 1949 and edited by Arthur T. Vanderbilt,
there is found, at page 492:
"In many cases (State) statutory review provisions expressly provide for a
trial de novo in the reviewing court, although the review is often confined to the
record made before the Agency. Even under such statutes, however, one should
note 'a tendency on the part of the courts to narrow their own power regardless
of the breadth of authority given them in the statute.' The prevailing trend in
the States is accordingly in the direction of the Federal rule on the scope of
review, as expressed by the Supreme Court in the Consolidated Edison case.
" 'Thus it may be laid down as a generally established rule of judicial policy—
subject to sharp exception in a few of the States—that regardless of the breadth
of judicial review authorized by the particular statute, the courts are reluctant
to go farther than to decide questions of law and jurisdiction, and to make suffi-
cient examination of the facts to see that the order appealed from has some
degree of support—variously characterized as "substantial," "sufficient," "ade-
quate," etc.—in the evidence.' "
In Lavery's "Federal Administrative Law" (1952), at page 124, the author
states: "The courts are properly reluctant to substitute their views and conclu-
sions, as to matters of fact, in lieu of reasonably supported findings of an execu-
tive or administrative agency, which has been established by Congress."
DISADVANTAGES W O U L D F L O W FROM COURT REVIEW

We attempted to describe in detail during the hearings the disadvantages which

we were convinced would flow from court review of the decisions of the Admin-
istrator. I will not repeat them here. I would like to call attention to the fact
that the texts on administrative law seem to support our conviction. In the
classic "Administrative Justice and the Supremacy of Law in the United States"
by John Dickinson (1927), there is found at page 305 :
"No cases could really be more dissimilar in principle than those, on the
one hand, which involve the supply of an indispensable public service of which
the Government has a monopoly, and, on the other, land cases or pension cases
arising out of the distribution of a public bounty * * *. The latter involve
privileges rather than fundamental interests, and in the absence of arbitrary
or fraudulent favoritism there is no good reason why the details of administra-
tion should be interfered with by the courts."
"* * * Just as it is not advantageous to build into a body of strict law the
administrative distribution of pensions and land grants because the value of
the result icould not match its difficulty and disadvantages, so for the opposite
reason it is not practicable for the courts to attempt to deal as a matter of
law with those important political determinations of the executive which are
called 'matters of state,' such as the recognition of foreign governments, the
calling out of the militia, or the declaration of a state of war." (Emphasis
supplied.)
In "Administrative Agencies and the Courts" (1951) by Frank E. Cooper,
the author states, beginning at page 351, in a discussion of the scope of judicial
review of workmen's compensation cases :
"* * * The fact that the amount involved in the individual case is not
large likely contributes somewhat toward acceptance of this philosophy. There
is little in the character of the administrative procedure to create concern or
alarm. Judicial-type hearing procedures are usually employed, and there is
seldom any serious question presented as to the granting of a fair trial.
* * * Finally, the long experience and demonstrated expertness of compen-
sation commissions operate to create judicial respect for the administrative
determination."
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1967

SUMMARY
I would like to comment on what I consider to be two crucial points in the
consideration of the question whether decisions of the Administrator should be
subject to review by a court. The first relates to the nature of the ordinary
claim adjudicated by the Veterans' Administration. The great bulk of these
claims are not terminable. Issues are not presented which are subject to final
action. The claims are based upon factors such as the physical condition of
the veteran, the size of his estate, tlie fact of his unemployability, etc. All
of these factors are subject to change, and experience has established that they
do change. Thus we would encounter a shuttling back and forth between
court and Board, which would be most, undesirable for all parties concerned.
Were a procedure instituted which would make final the decisions rendered
by the adjudicatory body, great detriment to the veteran would result.
The second point reflects, I believe, a fundamental error on the part of some
of the proponents of judicial review. Reacting to an unsatisfactory experience
with the Board of Veterans' Appeals, or disagreeing with the application of the
law to an individual case, some seek to force the Veterans' Administration to
act in a certain way. (This motivation can be deduced from the nature of the
proposals made—that is, true judicial review as recognized in administrative
law is not proposed; rather, it is suggested that the judgment of one group of
men be substituted for another.) Judicial review, however, is not an appropri-
ate instrument through which to compel certain actions by Federal admin-
istrative agencies. Although individual case decisions may be reversed, the
nature of the subject matter involved provides unlimited opportunities for dis-
tinguishing future cases from those decided.
Your attention is respectfully invited to the comments of the 1941 report of
the Attorney General's Committee on Administrative Procedure as to the in-
effectiveness of judicial review to compel an agency to take a course differ-
ent from what it has determined to follow. At page 76 the Attorney General's
Committee stated:
"Yet judicial review is rarely available, theoretically or practically, to compel
effective enforcement of the law by the Administrator. It is adapted chiefly to
curbing excess of power, not toward compelling its exercise. * * * To assure
enforcement of the laws by Administrative Agencies toithin the bounds of their
authority, reliance must be placed on controls other than judicial review—
internal controls in the Agency, responsibility to the Legislative or the Executive,
careful selection of personnel, pressure from interested parties, and professional
or lay criticism of the Agency's worh." (Emphasis supplied.)
The American Legion concurs in the Attorney General's comment upon
judicial review and in the alternate solution proposed by him. If the Board
of Veterans' Appeals will confine its activities to judicial functions, if the House
Veterans' Affairs Committee will emphasize to an even greater degree than at
present its legislative oversight role, if funds are provided so that the Board
of Veterans' Appeals may secure an adequate number of capable personnel,
if interested parties will continue to exert appropriate pressure in appropriate
cases, and if the agency's work will continue to be exposed to professional
and lay criticism, then in the opinion of the American Legion the greatest
amount of good will be worked for the greatest number of veterans.
May I again thank you, Mr. Chairman, for this opportunity to present the
views of the American Legion. I respectfully request that this letter be made
a part of the record of the hearings. Your consideration will be greatly
appreciated.
Sincerely,
JOHN J. CORCORAN, Director.
Mr. KORNEGAY. The committee stands adjourned until this coming
Monday at 10 o'clock.
(Whereupon, at 11:5o a.m. the committee recessed to reconvene on
Monday,February 26,1962, at 10 a.m.)
 SPECIAL SUBCOMMITTEE ON JUDICIAL REVIEW

M O N D A Y , F E B R U A R Y 26, 1 9 6 2

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE OF THE COMMITTEE OX VETERANS' AFFAIRS,
Washington, B.C.
The subcommittee met at 10 a.m., pursuant to recess, in room 356,
Old House Office Building, Hon. Horace Kornegay (chairman of the
subcommittee) presiding.
Mr. KORNEGAY. The subcommittee will come to order.
The first witness this morning will be Mr. Garrett J. Bowman,
of the A M V E T S .
We are delighted to have you with us this morning, Mr. Bowman,
and you might proceed with your statement.
STATEMENT OF GARRETT J. BOWMAN, OF AMVETS
Mr. BOWMAN. Mr. Chairman and members of the committee,
A M V E T S are again pleased to have the privilege of appearing before
your committee in support of legislation to establish a Court of
Veterans' Appeals providing for the judicial review of veterans'
claims.
A M V E T S along with the Disabled American Veterans have been
vigorous supporters of this proposed legislation. F o r the past several
years this subject has been a major item in our legislative program.
Resolutions calling for the establishment of a court of appeals to
provide for judicial review of veterans' claims have been unanimously
adopted at our last three national conventions.
I n a letter to the chairman of this subcommittee under date of
February 19, 1962, Mr. P . E. Howard, our national executive director
outlined the three primary reasons why we favor the principles of
judicial review.
One, under the present system, the Veterans' Administration is
both judge and jury and sometimes even counsel in judging the merits
of veterans' claims filed with their agency.
I t is A M V E T S ' contention that under such a system a claimant's
basic rights are not adequately protected. While the veteran has
certain appeal rights the appeal is considered by a board within the
Veterans' Administration which over the years has helped formulate
the policies and procedures being applied to the case under
consideration.
Two, when the Congress enacts a law to be administered by the
Veterans' Administration, that agency interprets the law by "regula-
tion" or by "instructions of the Administrator."
1969
1970 JUDICIAL. REVIEW OF VETERANS' CLAIMS

The Board of Veterans' Appeals cannot grant relief even if it were

so disposed because of the provisions of section 4004C, title 38, United
States Code, not withstanding the lack of validity of the regulations or
t h e instructions. Such arbitrary action by the Veterans' Adminis-
tration has resulted in the need for Congress to pass additional legis-
lation clarifying beyond any doubt its intent with respect to legislation
previously enacted. Such cumbersome procedure would be obviated if
representative cases effected by the regulations could be submitted to
an independent tribunal so that the precedent thus established by such
an independent court could guide future administrative decisions by
the Veterans' Administration.
Three, veterans could not in any way, in our opinion, be damaged by
the establishment of an independent agency to which veterans' claims
could be appealed. The only possible result is that benefits which
have been denied a veteran may be allowed. Decisions thus rendered
might well pave the way for future favorable administrative action in
similar cases.
I n A M V E T S judgment the wisdom of establishing an independent
tribunal so t h a t this Nation's veterans may literally have their day
in court is well illustrated by the record of the U.S. Court of Military
Appeals established by the Congress in 1951 to prevent flagrant viola-
tion of the basic rights of our men and women in service.
This court has reviewed more than 15,000 court-martial verdicts
which were first reviewed by the Pentagon's boards of review. The
number of reversals of the Pentagon's decisions favorable to depend-
ents has exceeded 40 percent. When you consider that the Board
of Veterans' Appeals similar to the Pentagon's Keview Board in our
Defense Establishment handles moreover 40,000 cases annually and
t h a t only about 10 percent are reversed in favor of the veteran, the
need for an independent tribunal's review of veterans' cases becomes
almost self-evident.
Some argue that veterans' benefits are gratuities (a position which
A M V E T S does not accept) and therefore should not be subject to
judicial review. There is no substantive reason in our judgment why
these benefits should not be subject to judicial review to insure fair
administration both for the benefit of the citizen and the Government.
Many arguments have been offered by opponents of this legislation
and at this time we would like to touch briefly on some of these. Some
argue that the decisions of this special court would cause the Board
of Appeals to form more judicial decisions, restrict or eliminate non-
judicial matters and become moi-e formal to the detriment of the
veteran. The decisions of the Board of Veterans' Appeals have
always been subject to review by the U.S. court in insurance cases and
we have yet to see where this has had any effect on the type, form or
formality of their decisions nor has it operated to the detriment of
the claimant. I n all the years the Board of Appeals decisions have
been subject to review by the U.S. court in insurance cases, the only
major changes that have come about in the type of their decisions
or their format has been after judicial review became a subject of hear-
ings before the House Veterans' Affairs Committee.
We also hear that this would cause the Veterans' Administration
to adhere to and be governed much more strictly by the rigid rules of
evidence; would cause the Veterans' Administration to respond to the
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1971

rules and dictates of this new court: would result in a change in the
adjudicative process of the Veterans' Administration, causing a grad-
ual restriction of rights and a lack of flexibility in the Veterans' Ad-
ministration system. A M V E T S submit that there is nothing in the
proposed legislation or the transcript of the hearings held before the
House Veterans' Affairs Committe'e during the last Congress that
would indicate that this legislation would force the Veterans' Admin-
istration to change its present rules of evidence or its basic construc-
tion. Quite the contrary, a review of the testimony and the reports
of this committee and its advisers clearly indicate that the Veterans'
Administration rules of evidence will not be changed, nor would any
of the present procedures be affected from the local board on up to the
J3oard of Veterans' Appeals and the Administrator.
As for the Veterans' Administration being forced to respond to the
rules and dictates of this higher body, only claims that have been
denied by the Board of Veterans' Appeals would ever reach this pro-
posed court, therefore, the only ruling that would affect the Veterans'
Administration would be one in which the court reversed the Board of
Appeals.
A M V E T S fail to see how a reversal of a previous denial by the
Board of Veterans' Appeals could result in anything but a liberal
change in policy rather than a restrictive change. A denial by this
court would be merely an indication that the Board of Veterans'
Appeals had acted properly in accordance to the law and would in no
way further restrict the Veterans' Administration or cm-tail its
flexibility.
We also hear that this new court would be a form of trial de novo
a n d as such would be unacceptable. A M V E T S ask unacceptable to
whom? Surely not to the claimant who has exhausted all remedies
available to him at the Veterans' Administration.
Opponents of this legislation have stated that it will create personal
•expense to the veteran. This argument in the opinion of A M V E T S
is farfetched. None of the remedies the veteran now has for pursuing
his claim for benefits would be eliminated. If after exhausting all
remedies available he still is convinced that he has an equitable and
just claim another avenue of approach will be open to him. Nothing
in the proposed law forces him to use this avenue, therefore, whether
expense accrues to the veteran will depend strictly on the veteran
himself. I t will amount to a simple question of whether he has enough
faith in his claim to risk some of his own "capital" on it. This will
tend to separate the "wheat from the chaff" and help assure that only
legitimate cases will reach this so-called court of veterans' appeals.
As for precedents of this court having a telling effect on some cases
not yet acted upon by local boards or the Board of Veterans Appeals,
we must again remember that only cases already denied by the Board
of Veterans Appeals will be heard by this court. Of the cases heard
few will be precedent cases since only those bearing directly on inter-
pretation of the law will establish a precedent. Most cases will be
decided on a factual basis and in accordance with the facts and evi-
dence in the instant case.
If the Veterans' Administration has determined that the law does
not permit the benefit sought, how could a reversal of that decision
adversely affect anyone but the Veterans' Administration. If the
1972 JUDICIAL REVIEW OF VETERANS' CLAIMS

court does not reverse the Veterans' Administration, we are then in

the same position as we were before the court ruling. This A M V E T S
believe to be most important. We will have been heard by an inde-
pendent group rather than the same personnel or agency that made
the initial interpretation.
We have also heard from opponents of this legislation that these
decisions would result in the operation of the doctrine of res judicata
and that such a doctrine would serve as a severe loss to the veteran.
This argument in the opinion of A M V E T S is not sound. Undoubt-
edly the court decision would be final as to the evidence then of record;:
however, nowhere in the proposed legislation is a veteran restricted
or deprived of his right to reopen his claim through Veterans' Ad-
ministration channels on submission of new and material evidence.
Major criticism by veterans' organizations or the veterans themselves
involving decisions of the Board of Veterans Appeals centers around
their decisions regarding basic entitlement; in other words, the inter-
pretation of sections 311, 312, and 353 of title 38, United States Code.
I n order to assure the veteran adequate protection of his rights under
these sections, A M V E T S feel that either one of two things must be
done. Either we establish an independent court to review denials
by the Board of Veterans Appeals or by congressional action we
amend these sections of title 38 to make these presumptions absolute.
I n conclusion, A M V E T S feel that judicial review can only benefit
the veteran by allowing further recourse in his efforts to obtain
favorable action when he sincerely believes his claim is just.
Favorable action by judicial procedure may pave the way for al-
lowances in similar cases, but we do not believe that unfavorable
rulings by the court will be detrimental since they would merely
tend to reaffirm policy already established by prior Veterans' Ad-
ministration decisions.
The issue we feel is quite simple. As the situation now stands, a
veteran's claim is against the Veterans' Administration: it is ad-
judicated by the Veterans' Administration and when a decision is
reached and a question arises as to the legality of that decision, then
the final determination is again made by the Veterans' Administra-
tion. W e of A M V E T S feel that the veteran is not adequately pro-
tected through this procedure and for this reason we urge your sup-
port of legislation to establish a court of veterans appeals as an inde-
pendent body separate and apart from the Veterans' Administration.
I would like to take this opportunity to thank this committee for
the privilege of appearing before you to present A M V E T S position
on this all important issue.
Mr. KORNEGAY. Thank you very much, Mr. Bowman. Mr. Ad-
dabbo.
Mr. Addabbo, we welcome you to the committee. Is there any
question you would like to ask at this moment ?
Mr. ADDABBO. Not at this moment.
Mr. KORKEGAT. Mr. Bowman, do you happen to have with you
at this time copies of the resolutions which were unanimously adopted
at any of the national conventions ?
Mr. BOWMAN. I don't have them with me, but I can secure them for
you.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1973

M r . KORXEGAY. W o u l d y o u g e t u s copies of those resolutions?

M r . B O W M A N . I will be g l a d to.
M r . KORNEGAY. T h a n k you. A s I u n d e r s t a n d it from y o u r s t a t e -
m e n t , these resolutions w e r e u n a n i m o u s l y a d o p t e d b y t h e n a t i o n a l
c o n v e n t i o n ; is t h a t c o r r e c t ?
Mr. B O W M A N . Correct.
M r . K O R N E G A T . M r . D o w n e r , a s counsel for t h e s u b c o m m i t t e e , d o
y o u h a v e any questions you w o u l d like t o a s k ?
SUBCOMMITTEE COUNSEL. N O , t h a n k you.
M r . KORXEGAY. T h a t is all I can t h i n k of a t t h e m o m e n t , M r . B o w -
m a n . W e w a n t to sincerely t h a n k y o u f o r t a k i n g y o u r t i m e t o come
a n d a p p e a r before t h e s u b c o m m i t t e e a n d for p r e s e n t i n g such a fine
statement.
( T h e resolutions requested b y t h e c h a i r m a n a p p e a r b e l o w : )
RESOLUTION 3

Whereas the present system of adjudication of claims by the Veterans'

Administration provides appeals only to boards and groups operating within
the Veterans' Administration ; and
Whereas this situation gives basis for just criticism and complaint by veterans
whose claims have been denied that they have in fact not had consideration of
their appeal outside the agency of original jurisdiction; and
Whereas the Board of Veterans Appeals of the Veterans' Administration is
bound by the decisions and precedents of the General Counsel and Administrator;
and
Whereas the system followed by Veterans' Administration limits the veterans
access to pertinent documents and information relating to his case: Now, there-
fore, be it
Resolved, That AMVETS in convention assembled in Grand Rapids, Mich.,
this 29th day of August 1959 do recommend further study on *he part of appro-
priate committees of Congress and legislation creating a further avenue of
appeal beyond the Board of Veterans Appeals of the Veterans' Administration.

RESOLUTION 32
(Adopted by AMVETS 17th Annual National Convention in Louisville, Ky.,
August 24r-27, 1961)
Whereas the decisions of the Administrator of Veterans Affairs are final with
respect to all claims for compensation and pension; and
Whereas there are pending in the House of Representatives several bills to
authorize judicial review of decisions of the Administrator of Veterans Affairs;
and
Whereas the enactment of such legislation would provide an additional ave-
nue of appeal to an impartial tribunal for the veteran claimant; and
Whereas under present procedures, the Veterans' Administration prosecutes
the claim; defends against the claim; determines the facts and judges the merits
of the claim ; and
Whereas it is desirable that safeguards be established to prevent unreasonable
or arbitrary decisions in the interests of both the citizen and his Government;
and
Whereas it is in keeping with the spirit of American political institutions that
judicial review should be available to assure that those with claims against
the Government may, under prescribed conditions, have their day in court: Now,
therefore, be it
Resolved, That AMVETS record itself as endorsing the principle of judicial
review of Veterans' Administration decisions.
1974 JUDICIAL REVIEW OF VETERANS' CLAIMS

RESOLUTION 49

(Adopted by AM VETS 16th Annual National Convention, Miami Beach. Fla.,

August 25-28, 1960)
Whereas the present system of adjudication of claims by the Veterans' Ad-
ministration provides appeals only to boards and groups operating within the
Veterans' Administration; and
Whereas this situation gives basis for just criticism and complaint by veterans
whose claims have been denied that they have in fact not had consideration
of their appeal outside the agency of original jurisdiction; and
Whereas the Board of Veterans Appeals of the Veterans' Administration is
bound by the decisions and precedents of the General Counsel and Adminis-
trator : Now, therefore, be it
Resolved, That AMVETS urge the Congress of the United States to enact
legislation providing a further avenue of appeal outside the Veterans' Admin-
istration in the form of a special board or court of veterans' appeals.

STATEMENT OF RAOUL BERGER ON BEHALF OF THE AMERICAN

BAR ASSOCIATION
Mr. KORNEGAY. Mr. Berger, would you come around?
Mr. Berger is a representative of the American Bar Association and
I would like to say, at the outset, Mr. Berger, we are delighted that
you could and would come and" appear and testify before this special
subcommittee. W e are very pleased to have you at this time.
Mr. BERGER. Thank you, sir.
Mr. Chairman, it is indeed a privilege to appear before you here.
First, let me apologize. Due to the pressure of our annual mid-year
meeting, I was compelled to prepare my statement yesterday, of all
days, and I have therefore only a rough draft for myself and unfor-
tunately have nothing to submit to you in writing.
Mr. KORNEGAY That is quite all right, sir. You just proceed and
make any statement you wish.
Mr. BERGER. Thank you. I may say that I am here for the Amer-
ican B a r Association, which approves the principles of your bill and I
am here in support of it.
My name is Raoul Berger. I am an attorney engaged in private
practice in Washington, D C , and appear at your invitation on be-
half of the Amei'ican B a r Association. I am chairman of the ABA's
special committee on courts of special jurisdiction, and chairman of
the section of administrative law of the ABA.
Formerly I served with the Securities and Exchange Commission.
I was a special assistant to the Attorney General and I completed an
8-year spell with the Government as General Counsel to the Office of
the Alien Property Custodian.
Since 1946 I have been engaged in private practice in Washington,
and during the course of my practice I have devoted myself very
largely to administrative law matters.
I may say I have published studies of various administrative law
problems.
I t was my privilege to appear before you at your invitation on April
o, 1960 with respect to a predecessor bill. May I add, I thought your
committee issued a splendid report.
My testimony was printed in the hearings of your subcommitte, 86th
Congress, 2d session, April 1960 at pages 2301 to 2321. I have reread
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1975

that testimony and believe that the statement then submitted reflects
the current position of the American Bar Association.
Since then I have had occasion to delve more deeply into the prob-
lem of separating adjudication from administration in connection
with the proposal of the A B A to remove judicial functions from the
Federal Trade Commission, to a Trade Court, and I have furnished
to your counsel several copies of an article I published as a result of
that study in the Michigan Law Eeview of December 1960.
There you will find a thoroughgoing attempt to explore every facet
of the problem which is, of course, akin to the problems involved in
the separate veteran's courts.
Mr. Bowman touched on some of those problems. There are still
others. I may say to you, when I came to study the problem I entered
upon the study with a dispassionate mind. As a student, I wanted to
ask myself, "Is it a wise thing where claims ai-e presented, to separate
out adjudication for administration"? And I can say to you gen-
erally, I concluded, as a student, it was the better p a i t of wisdom to
do so. So I can only applaud your proposal to establish a court.
I n view of the fact that you have my prior testimony in 1960 in
the record of the prior hearings, I shall content myself with hitting
some of the highlights against Avhat we may call jurisprudential
background.
Let me begin by saying that certainly lawless action by an admin-
istrative official, that is to say, action which is unauthorized by, or
contrary to, statute or regulation, or that is arbitrary and capricious,
has no place in our system of Government. So the Supreme Court
said in Garfield v. Goldsly, 211 U.S. 249 at 262. I t said:
.There is no place in our constitutional system for the exercise of arbitrary
power. To insure that it finds no place in our Government, illegal or arbitrary
action must be subject to judicial review.
An action can be illegal not because it is wrong-headed, because it
is willful, but because it is mistaken or hurried. We cannot leave the
administrator, in short, to be the final judge of his own powers. Ad-
ministrators, like all of us, are fallible men, and their errors must be
subject to review, particularly insofar as their misinterpretations of
law proceed beyond their statutory jurisdiction or deny rights that
Congress has granted.
These are not novel concepts, Mr. Chairman. Back in 1946, in the
course of the enactment of the Administrative Procedure Act, both
the Senate and House committees stated, and I quote:
It has never been the policy of Congress to prevent administration of its own
statutes from being judicially confined to the scope of the authority granted or
to the objectives specified. Its policy could not be otherwise, for in such a case
statutes would, in effect, be blank checks to the credit of some administrative
officer or a board.
That quotation comes from the legislative history of the Admin-
istrative Procedure Act, Senate Document 248, 79th Congress, 2d ses-
sion, pages 212 at 275.
My own experience has convinced me that insulation from judicial
review inevitably breeds callousness, persistence in obvious error and
arbitrariness. You will find some examples cited in my prior testi-
mony.
1976 JUDICIAL REVIEW OF VETERANS' CLAIMS

As a practical matter, nothing is better calculated to promote rea-

soned and careful decision than the knowledge that it may be upset on
review.
Often, the absence of such review actually heaps burdens on the
Congress. Who among you has not been burdened with complaints
from veterans dissatisfied with administrative decisions? Availabil-
ity of judicial relief would curtail such complaints. No constituents
could come to you and complain of the decision of a court when you
have unbiased, impartial, and independent courts.
On this score, finally, to the extent that the veteran's claim has in-
surance aspects, we must ask ourselves whether we would like to have
counsel of a private insurance company finally decide our claim. Ob-
viously, we would not.
Let me now address myself to the advisability of establishing an
independent appeals agency.
Not long ago, the Sir Oliver Franks Committee on Administrative
Tribunals and Inquiries, 1957, page 5, reported to the Parliament
that, quote:
When Parliament sets up a tribunal (as differentiated from a court) to
decide cases, the adjudication is placed outside the department concerned. The
members of the tribunal are neutral and impartial in relation to the policy
administered except insofar as that policy is contained in the rules which the
tribunal has been set up to apply.
I n other words, even when a tribunal, an administrative tribunal,
as differentiated from a court is set up in England, they seek to set
it up outside of the Ministry; and why, because we recognize that a
policy that is replete with social considerations, dynamic considera-
tions, which you are asking administrators to effectuate, inevitably
they become dedicated to that policy and don't view the individual
claim as dispassionately as the claim deserves to be reviewed.
May I remind you, the Board of Tax Appeals, the predecessor of
our respected Tax Court, was established entirely outside of the
Treasury Department, in part to meet the demand for, I quote—
Review by an impartial outside body.
This was said in House Report 179, 68th Congress, 1st session. '
So, too, the bar association now sponsors a bill to transfer the
adjudicatory functions of the Federal Trade Commission to a trade
court, because it is our considered judgment that an independent adju-
dicatory tribunal will not be suspect of impartiality and will acquire
more expertise in consequence of judicial tenure than now obtains
with respect to the Federal Trade Commission.
One who has been called up for military service, who perhaps,
stormed the beaches of Normandy or Guadalcanal or froze in Korea,-
especially when disabled in the course of such service, should not be
left with a sense of resentment that he cannot obtain an impartial
review of what he considers the Administrator's wrongful rejection
of his claim. H e may, in fact, have received fair play. But that is
not the governing consideration. H e is entitled to be treated in a
manner which he believes to be entirely impartial.
How can a veteran feel, when he observes that a claimant who was
dissatisfied with a Board of Contract Appeals, a property case, may
sue in the Court of Claims after he has been turned down by admin-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1977

istrators, whereas his own claim for disability compensation or pen-

sion is cut off by the administrative determination. T h a t seems to be
an unjust and irrational discrimination.
Bear in mind as Mr. Jackson somewhere noted, administrators,
through sheer pressure of detail, begin to think of cases in terms of
documents rather than the human problems involved simply because
of the flood of documents that cross their desk. I t cannot be suffi-
ciently emphasized that confidence of the public in impartiality of
adjudication is the foundation stone of our Government. What Sir
Oliver Frank's committee said about England is no less true here.
In this country government rests fundamentally on the consent of the governed.
The general acceptability of these adjudications is one of the vital elements in
sustaining that consent.
(p. 5.)
I n terms of what we are talking about today, the boys who have been
asked to fight and shed their blood for the Government must mini-
mally have complete confidence in the justice with which they are
being treated by the Government, they must feel not merely that justice
is being done, but that there is every semblance of justice. The claim-
ant must be satisfied he is being treated fairly. I t is like having
an umpire in the game whose manner of calling individual shots you
may not like, but you know he is at least independent of either side,
he is not the father or brother of one of the players.
Let me now turn to an important problem of administration pres-
ented by H.E. 849 which I think merits your very serious considera-
tion.
As I read your bill, it contemplates review on a- record. F o r ex-
ample, section 4054(c) provides the following
Mr. KORNEGAY. Excuse me. Let me interrupt. Which bill are you
referring to now ?
Mr. BURGER. H.R, 849.
There are a number of references to the record at a number of places.
By section 405, the record is reviewed by the court, and it provides
first (a) that the chairman shall certify a copy of the record, or he may
transmit the entire claims file. And I will come back to that.
But (c) says:
The findings of fact by the Board, if supported by a preponderance of the
evidence in the record before the court, shall be conclusive.
Now, let me remind you that throughout the administrative process,
provision for a record contemplates a formal hearing before the Ad-
ministrator with sworn testimony, the right of cross-examination and
the like. I will say that is almost without exception, to my knowledge.
Without such a record, judicial review on a bare claims file is un-
satisfactory, because somewhere the claimant should have had a chance
to cross-examine, to have sworn testimony, and to do all the things
we are accustomed to in hearings.
Now, there is a dilemma here. To require that a formal record
be made of every case administratively determined imposes a back-
breaking burden and one that is in fact unnecessary. That is the
point I want to address myself to.
When our Committee on Judicial Review in the Administrative
Law Section looked into the matter several years ago, it found ap-
80082—62 17
 1978 JUDICIAL REVIEW OF VETERANS' CLAIMS

proximately 2,800,000 claims for compensation for disability incurred

in or aggravated by military service, about 1 million pension claims
for non-service-incurred disabilities provided the veteran meet certain
war service requirements.
Such claims are initially determined in the regional office of the
Veterans' Administration by a rating board and the vast bulk of the
claims are siphoned off at this stage by informal procedures. About
10 percent of the rating 'board decisions were appealed to the Board
of Veterans' Appeals in Washington, which may permit the appeal
to be heard by the rating board or some other rating board. Con-
gressman Devine testified before you in April of 1960, at page 2296
of the hearings, that the Board itself decided about 47,000 cases a
year. Forty percent of these appeals were decided favorably to
claimants, leaving 60 percent as a possible subject of judicial review.
This 60 percent, I believe, represents 6 percent of the total claims
filed of several million claims.
Now, to require that the administrators make u p a record in 100
percent of the cases, when only 6 percent are going to be appealed, is
to require superfluous formality in 94 percent of the cases and place
a monstrous burden on the administrative shoulders. I t is surely ad-
mirable, very praiseworthy, that the Administrator can by informal
proceedings clear the decks of 94 percent of the huge mass of claims.
Let me hammer home that a record is only essential for the 6 percent,
which is to be subject to judicial review.
Now, there is a simple solution. Let the administrators presently
go forward with their claims as they do, informally. They will dis-
patch 94 percent of the claims. Provide for a trial de novo for only
6 percent of the claims. This does two things. I t insures a simple,
easy procedure, where you need it, for the vast bulk of cases and
it affords the dissatisfied claimant, and this is the fellow we are con-
cerned with, a chance he never had, to have a hearing, to swear wit-
nesses, to have cross-examination.
So my suggested solution to you would be to provide for a trial
de novo in your proposed court, permit it to take evidence, and make
up a record in the cases that are appealed to it. This follows the pat-
tern of the Code of Administrative Procedure proposed by the A B A
and now sponsored by Congressman Walter in H.R. 9926 to which I
will turn in a moment. Let me put in a plug for that.
Gentlemen, you are dealing with only one aspect of the administra-
tive problem. This revision of the Administrative Code is long
overdue, as Congressman Walter said in a conversation with me. I t
represents 2 years of elaborate study and I think every one of you
who is interested in administrative form, and you are concerned with
only one aspect of it, ought to get behind the bill.
Well, the pattern of that hill is what we are talking about here.
Wherever an agency wants to have informal hearings, where formal
hearings are not required by statute or by the Constitution, it can
have informal hearings, and in that case you would have judicial trial
de novo. But where there has been a formal hearing before an
agency, where it has heard the evidence under oath, where it has made
up a record, observed all the protections that we associate with a trial,
jii-that, case it would be wasteful to have a trial de novo. I n that case
we have an appeal on the record. You can't have it both ways.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1979

Now, when you have formal hearings and review upon a record,
the question then is whether there were errors of law below and
whether the findings of fact are supported by substantial evidence.
I t is impracticable to decide that just on a bare claims file and is
really unjust, unfair.
Again, in view of the tremendous caseload, let me reiterate, 94 per-
cent of which is dispatched by informal administrative means, I would
counsel against any suggestion that all admnistrative hearings must
be based upon a record.
To the contrary, preserve informality in the administrative proceed-
ings. On the other hand, there can be no adequate appellate judicial
review in the absence of a record based upon the hearing below. The
solution, I repeat, is to dispense with malting records in the informal
agency proceedings and to require the court to make a record in that
small 6 percent which comes up and have a judicial trial de novo.
This still leaves a very large number of claims to be tried in our
proposed courts, perhaps 30,000, which would be determined judicially,
but as Congressman Saylor stated before you at the prior hearings in
April of 1960, at page 2294, the parallel English practice had exhibited
a failure to determine administrative precedents, whereas the court
which followed succeeded in developing a line of criteria. This is
at your hearings at 2230. I n a word, the English court settled judi-
cially disputed points of law. I t established categories so that there-
after such disputed points were not repeatedly made the subject of
claims. Then many cases could be submitted by stipulation on a point
of law. I t will be found, I venture to predict, that the cases will fall
into fairly simple categories as was the case in England, and before
long will'lend themselves to expeditious judicial handling; and once
counsel for a claimant realizes that he is faced by controlling prece-
dents he is not going to indulge in vain litigation.
So, while at the outset, in carving out these judicial precedents,
there will be a fairly heavy load, before long that load will be atten-
uated and you will have clearly marked judicial precedents which will
take care of most of your judicial cases.
Let me say a final word about the court and its commissioners.
Because of the mass of cases, the trial de novo, it seems to me, should be
before a commissioner, who will conduct a formal hearing, make up a
record and render an initial decision, which should be final in the
absence of an appeal to the court. I n the event of appeal from the
examiner or the commissioner, the case should be heard on exceptions
to the commissioner's decision. The court should inquire whether his
findings are supported by substantial evidence and whether there are
errors of law. I t would, in my judgment, be wasteful and a mistake to
permit a complete reexamination of the facts by the court. The fellow
that hears the case, that hears the witness, that lives with it longest—
he is the fellow that should make the findings of fact. If they are not
supported by substantial evidence, the court, on appeal, reverses it.
If there are errors of law, the court reverses it.
This means, of course, that the commissioners should be able, compe-
tent men, to whom the case may be confidently entrusted and on whose
decision, subject to appellate review by the court, we are entitled to
rely.
1980 JUDICIAL REVIEW OF VETERANS' CLAIMS

An example of a respected body of commissioners is furnished by

the Court of Claims. So what you would wind up with is a trial de
novo by a commissioner and appellate review by the court. T h a t is
desirable because, you are cutting off all further judicial review when
your veterans' court concludes its review.
May I summarize my suggestion.
Informal administrative proceedings suffice to dispatch 94 percent
of the claims. There should be no requirement of formal hearings
of record for these cases. Let the administrators proceed informally,
if they choose. A record is only required for the 6 percent that is
appealed and of course there is no way of knowing what claims will
be comprised in that 6 percent. So that record must be made up and
can be made up in your proposed court, which, though named a "court
of appeals," would in fact be trying cases de novo. Within that court
the actual trial de novo should be conducted by a hearing commis-
sioner who will hold a formal hearing and write a decision, just as a
trial judge would do. From this commissi oner's decision, an appeal
on exceptions would lie to the court itself and that appeal would be
limited to questions of law.
Now, I may say to you, these suggestions, gentlemen, don't come
off the top of my head. W e have had this whole question of the role
of the trial examiner under very careful and elaborate study. The
longer we studied the administrative process, the more we realized
how wasteful it is to revise a hearing commissioner's study and opinion
and do a complete rewrite of the case. You won't have very compli-
cated cases here, but in some agencies and administrative hearing
before a commissioner may last 3 years and result in thousands of
pages of testimony. Oftentimes his opinion is then discarded. So
I am carrying over to you a suggestion that is based on an examination
not merely of your problem, but of kindred problems across the whole
administrative agency process.
I earnestly submit to you that whatever benefit my coming here
may have, it surely can be only in leading you to consider what seems
a lesser detail but which in fact lies at the core of good administration,
the making of a record only at the judicial stage, here important
because of your mass of claims.
I venture to predict, Mr. Chairman, that a court staffed with fine
men and assisted by competent commissioners, can handle the appeals
of claimants who complain of adverse administrative determination.
The important thing, however, is to provide dissatisfied claimants
with an assurance of impartial determination. There your bill has
our unqualified endorsement.
One who has risked his life for his country deserves no less.
Now, if there are any questions that it lies within my power to
answer, I shall be pleased to respond.
Mr. KORNEGAY. Mr. Addabbo?
Mr. ADDABBO. I realize you are a well-qualified representative of
the District bar. Let me just ask several questions here. Do you
think the procedure would be simplified if the present Board of Vet-
erans Appeals was forced to take verified testimony or certified testi-
mony if so requested by the claimant and then after the Board of
Veterans' Appeals makes their decision it be limited to judicial review
of their decision on the administrative record ?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1981

Mr. BERGER. I haven't thought of that suggestion and it merits

consideration, Mr. Congressman. W h a t it does, of course, is to add
another 40 percent; namely, 40 percent of the claims that the Board
decides in favor of claimants, to be made up on the record. I t also
forces every man that comes in, within that 10 percent of the total
claims before the Board, to insist on a sworn record right then and
there, because he can't foretell whether the Board will act adversely.
So you are asking for a formal hearing at an earlier stage for another
40 percent of the claims, which may prove to be unnecessary.
Mr. ADDABBO. Except that, possibly, when we do have a procedure
for the judicial review that that same 6 percent you spoke of may also
increase, greatly increase because they feel they would have another
further step they could go to and we may have a greater increase.
Mr. BERGER. Let me first seek to dispel any impression that I am
opposed to your suggestion. I haven't thought of it; it seems to
be a good one; but thinking quickly, it is open, first of all, to the
possible objection that it expands almost by half the number of
records you have to make up.
Now, coming to your suggestion, I think we must anticipate at
the outset that many dissatisfied claimants will appear before your
coui't but it will not be long, Mr. Congressman, before you are going
to have a cluster of adjudications which will lay down principles
of law which will siphon off the bulk of those cases. Because by
and large attorneys are sensible men. The amounts involved are
small and right now, of course, badly limited by the limitation on
fees. No honest and intelligent counsel, staring in the face of a
judicial opinion which is unreviewable, by force of your act, is going
to counsel his claimant to appeal a claim which must be lost before
the court because there is a precedent barring the claim. So I antici-
pate, and Mr. Saylor pointed out this was the parallel experience of
England, that you will have what he called signpost cases that very
speedily will aid in dispatching and in foreclosing a lot of litigation.
Mr. ADDABBO. Very possibly, but I believe in many of these cases
you have a A'ery personal and independent problem and where there
would be some variation between one case and another, I don't think
they should be foreclosed on the basis of the precedent set before.
Mr. BERGER. Well, far be it from me to pose as a better prophet
than you. To the contrary. And certainly I may add that I consider
your suggestion as an improvement, having records made up before
the Board, as an improvement on the present scheme. B u t I do
suggest to you the central and inescapable problem when you talk
about "review" on the record is that you must have a record. A
claims file is not an adequate substitute. W h a t you are seeking to
accomplish will be frustrated without a record hearing. You will
have the trappings of an independent hearing without the substance
of it; you have to make up a record somewhere. I t may be before
your Board or it may be a trial de novo in a court, which, without
having thought through your proposal, would still remain my
preference.
Mr. ADDABBO. The only thought I had in the matter was this. If
you set up a central board it would probably be here, probably in
Washington, otherwise we would have to go to an expenditure in
1982 JUDICIAL REVIEW OF VETERANS' CLAIMS

boards set up throughout the country and possibly bringing it right

back to the Veterans' Administration and right then and why not
start out with a little expansion of the local administration and let
them hold regular hearings with sworn testimony and then pick up
the review from that point and in this way the veteran doesn't have
to be traveling from California to Washington or hiring counsel. He
can bring his own matter up right in his own locality where they
would have the prior hearing, where everything is still fresh, and then,
for the final review, come to Washington.
Mr. BERGER. YOU make a good point, Mr. Congressman, but con-
sider the cost of having formal hearings for upward of, well, for
several million claims, and consider the possible alternative, which is
what you have right now in the Court of Claims, roving commission-
ers, always remembering that only 6 percent of your claims eventuate
in formal hearings. The question we have to decide—I can't and of
course you wouldn't, I believe, suggest that you can at this point—we
have to balance the cost. W h a t will be the cost of having formal rec-
ords, formal hearings on several million claims, against the cost of
having commissioners go out in the field with clusters of cases in
only 6 percent of the claims. I would guess, and it is only a guess,
that it would probably cost considerably less and would be far more
expeditious to proceed with informal determinations in 94 percent
of the claims and let your commissioners go out in the field and make
records in the remaining 6 percent. A commissioner might go out
and hear 30 or 40 claims at a time in a given locality set out for him.
I think that might prove to be less costly, but it is just a guess.
Mr. ADDABBO. I n other words, it would be an impartial basis of a
commissioner going out ?
Mr. BERGER. Yes. I think your point is very well considered, Mr.
Congressman, that to make judicial review for a thousand-dollar claim
available in Washington only might be a heartbreaking, illusive rem-
edy for a veteran who has to come to Washington t o testify with his
witnesses. You would have a real problem, Mr. Congressman; you
are quite right.
Mr. ADDABBO. That is what I was thinking of, bringing them back.
Mr. BERGER. You are quite right.
Mr. ADDABBO. N O further questions.
Mr. KORNEGAY. Mr. Berger, I think you hit a very sensitive, well-
considered proposition and that is that the appearance of justice is
almost as important as justice itself. I know that I found in my
experiences as a private attorney and as a prosecuting attorney that
the average person, regardless of the decision in his case, feels that if
he has had a fair trial he has little or no grounds for complaint. Of
course, there is a small percentage of people that will complain about
an adverse decision under any circumstances. With those we cannot
be too concerned if we try to do what is right for all of them. The
majority of people are satisfied if they have had their day in court.
Now, let me ask you about this. You are an expert in the field of
administrative law and administrative agencies. Could you cite for
us examples of any administrative agencies which handle judicial or
quasi-judicial functions which are not subject to judicial review?
Mr. BERGER. Yes. There are several I can name offhand. One is
the Foreign Claims Commission and certain of the claims that are
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1983

determined by the Office of Alien Property are not subject to judicial

review and I may say, in the latter case, you have the situation where
property has been summarily seized from Americans upon an admin-
istrative finding that they belonged to enemy aliens and even there
there has been a foreclosure of judicial review.
We, in the American B a r Association, when we came to studying
the problem, found there were six instances where that obtained. I
couldn't recite from memory where they are. And because of that,
when we came to revise the Administrative Procedure Act, section
10(a) which provides for judicial review where there is no other ade-
quate remedy and which creates an exception, "except where a statute
otherwise provides," we revised that exception to read, "except where
Congress by statute hereafter provides," with the object of doing just
what you are doing, of asking "Why should any administrative agency
be insulated from review?"
Our policy is to make judicial review available across the board, at
least for this situation, where an officer has acted without statutory
warrant or unconstitutionally or arbitrarily.
I t is just bad government, gentlemen, that a man who administers,
who is a delegate of ours, who does acts wrongfully, should not be
called to account in a court. T h a t way, it seems to me, lies all the evils
of totalitarianism and I am not a rabid rabble rouser. O u r whole
system presupposes that we can call our delegates to account and the
only place you can tell them to account is in the court. You Congress-
men haven t the time to look into individual cases. So, while there are
several instances, to come back to your question, in which there is a
statutory preclusion of judicial review of administrative determina-
tions, we m the bar association deplore the existence of those older
statutes. We have urged and will urge, under this H.R. 9926 of Con-
gressman Walter, that those situations be reviewed and that judicial
review always be available in every instance.
Mr. KORNEGAY. Now, some of the opponents of this measure criti-
cize it because they feel that the operation of the doctrine of res judi-
cata would enter the picture once you set up a court and have written
opinions. W h a t feelings, if any, do you have as to the advisability
and desirability in the field of veterans affairs to make operative the
doctrine of res judicata?
Mr. BERGER. First, let me confess that I am abundantly ignorant
about the administration of this statute particularly. I never handled
a veterans affairs case. I had no opportunity to study the substan-
tive statute. B u t I am tolerably familiar with the effect of res judi-
cata in the field of administrative law.
Now, what does res judicata accomplish? I t tries to settle cases;
to put an end to litigation once determined. I t presupposes that some
tribunal looked at a matter arrived at a reasonable conclusion and
having done it once, it is going to abide by it. I n a case that has been
tired by a litigant, he has had his chance once to have it heard by a
court. T h a t is the end of it. There must be an end to litigation some-
where. You can't perpetuate the litigant's retrying of his case. Once
a man has been heard in court on a particular claim that should be the
end of his claim.
1984 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. KOENEGAT. I n the filial analysis, is it not better for the claimant,
as well as the public, to have some point where finality will attach to
a dispute?
Mr. BERGEE. I t is better for him, but certainly we also have to think
at this point of the whole problem of administration, of our whole
scheme of government. We can't, with all the problems that present
themselves to us, perpetually concern ourselves with this one claimant.
W e have given him this one chance he deserves, a fair and impartial
hearing, and he has had that and it must be the end of it.
Let me add to what you said, if I may, Mr. Chairman, as a lawyer,
after I have lost a case, I have cussed out a judge for being so bold
as to reject my well-reasoned brief, but I have never gone out of court
feeling that I have been unfairly treated. The umpire—you cuss
him out under your breath, but that is the game. I had all I had
been entitled to. I have always been satisfied. I n my experience, I
never suspected the partiality of a judge in my long years of practice.
That is what lies at the root of things. That cuts both ways. We
have to be able to say to the veteran, "Look, fellow, you have had your
chance, we brought the best wisdom Ave can bring to it." If there is
fallibility, that is true of all affairs of life. I t has to come to an end
here and now.
Mr. KORSTEGAY. I n other words, do you find that particularly harm-
ful to the veteran or to the country for the doctrine of res judicata to
apply in the final determination before the court?
Mr. BERGER. I would say it is a necessary part of any well-ordered
scheme of administration.
Mr. KORNEGAT. Let me direct your attention to one of the provisions
of the bill, Mr. Berger, H.R. 775, subsection (b) of section 4055,
relating to attorneys and agents. Section (b) in this particular bill
states:
No person may represent a claimant before the court unless he is a member of
the bar of a Federal court or of the highest court of a State. The court may
prescribe qualifications of persons who may represent claimants in proceedings
before commissioners.
W h a t comment, if any, do you care to make about that particular
section or the sections relating to attorneys and those that may be
qualified to represent claimants before the commissioners or the appel-
late court ?
Mr. BERGER. The first sentence would meet with my unqualified
approval. The bar association policy is that if any member of the
bar is a member of the bar of a Federal court or of the highest court
of a State, that should entitle him ipso factor to appear before any
agency of the Government.
Now, when you speak of qualifications in the second sentence, "the
court may prescribe qualifications of persons who may represent
claimants, I am not sure of what your committee has in mind.
Normally, once you have been admitted to practice to the highest
court of a State, the inferior courts impose no further qualifications.
Mr. KORNEGAT. I f I might interject this thought for I think that
the author of the bill had it in mind. This is my personal view of
what he intended. I n the administration of veterans affairs and in
pursuance of claims and in representing claimants, we have, or each
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1985

of the veterans organizations, the V F W , American Legion, A M V E T S ,

Disabled American Veterans, all have what they call claims officers.
They are not in many instances actually attorneys because they have
no formal legal education, but as a result of experience and training
they have become specialists in this field. They are now permitted to
represent veterans at the individual level, at the regional level and,
as I understand it, before the Board of Veterans' Appeals. I s that
correct, Mr. Downer?
SUBCOMMITTEE COUNSEL. Yes.
Mr. KORNEGAY. I think what the author of the bill had in mind
was that these specialists who are not licensed attorneys, if they were
qualified from the standpoint of experience and training in the field,
might be authorized by the court to appear before the commission
in the trial of these matters.
Now, I might add, in addition to the veterans service officers of
the various veterans groups, many of the States have veterans service
officers. I know in my own State of North Carolina, we have the
North Carolina Veterans Commissions and the State is divided up
into regions or districts and each one has a veterans service officer
employed by the State. They do a very fine service in representing
veterans in their claims. They actually appear at the trial of these
matters and the hearings of these matters, and they appear before the
regional office and in some instances they go before the Board of
Veterans Appeals. I think that is the purpose of that provision,
realizing that in so many instances the veterans are unable to pay an
attorney and realizing that this is a specialized field, that although a
certain amount of law is involved, it is not so broad that they couldn't
adequately represent the veteran before a commissioner. I would
appreciate any comments you would make, as to whether or not the
bill should have a provision which would or could authorize the
practice before commissions or before the courts for persons who are
not attorneys but who have demonstrated, by reason of experience
and training in this specialized field, their ability to represent a
claimant.
Mr. BERGER. May I say, first, if that is the purpose you would have
to remove the ambiguity that exists by virtue of the first sentence
starting with "No person may represent a claimant before the court"
and the second sentence referring to "proceedings before commis-
sioners." Commissioners of courts are arms of the court. Presumably
representation before commissioners would be "before the court."
If section 4055(b) means that a layman may not appear before the
five-member court itself, the judges, but that a layman may appear
before the commissioners as differentiated from the court, that ought
to be spelled out.
Now, I address myself to the merits. There I speak to you not
as one who has been concerned with the problem; it is a problem that
cuts far wider than your experience here. There was the same prob-
lem before the Tax Court. There were, in the early days, laymen
practicing before the Interstate Commerce Commission, and the A B A
has a standing committee that deals with the problem. I n fact,
during its midyear meeting in Chicago, just a few days ago, various
instances were brought up. I think it is fair to say that the associa.-
1986 JUDICIAL REVIEW OF VETERANS' CLAIMS

tion really approaches it with an unselfish view. When you come

to legal problems, and by the time you are getting up to a court, the
.problems of interpretation, problems of evidence, et cetera, the re-
view of a record, these are legal problems, and we all know how
much time it takes, even after law school, to know your way around,
to become adept. You are not doing justice to the claimant himself
when you are allowing legal problems to be handled by nonlawyers.
I don't think that the A B A could approve or would approve, and
I speak just from my knowledge of existing policy, of any proposal
that envisages that laymen shall represent claimants with legal argu-
ments before your courts or before the commissioners as arms of the
courts, like referees or masters. We think this just doesn't make for
an effective presentation.
Mr. KORNEGAY. Now, one more line there. W h a t is your idea
with reference to the rules of evidence under your plan before the
Commission? Do you envision any relaxations of the rigid rales
of evidence as now employed in courts of law before the Commission?
Mr. BERGER. Well, may I first ask to dispense with the word "rigid"
because the rules of evidence are neither rigidly applied by the
courts nor by the agencies. Our experience, both in the courts and
in agency practice, has led us to conclude that the rules of evidence,
in the long run, play a salutary role. The get away from sloppy
records, a lot of irrelevant, incompetent material.
We came up, for example, in this code, which is H.R. 9926, with the
suggestion that the agencies should apply the rules employed by the
courts in civil, nonjury cases as nearly as may be practicable.
And I suggest to you, Mr. Chairman^ that ultimately this will
make for better records, more expeditious treatment. You will have
records made by the commissioners that should be more speedily
considered, and this is not to suggest a rigid exclusion of hearsay.
Judges make a lot of horsesense in these matters; seldom, except in
a capital case, is a case allowed to turn on an error of evidence; we
know that, too, on appeal. B u t it is a salutary rule for the trial
of a case.
Mr. KORISEGAY. Well, the problem is going through my mind, real-
izing the difficulty involved in getting witnesses before the court and
particularly medical experts. I am sure every practicing lawyer has
experienced it. I see, in your suggestion of having the commission as
the trial court, so to speak, this problem would confront the veteran
in getting all of his medical witnesses there if we operated under the
rules of evidence relating to hearsay, the hearsay rule, which would
preclude, of course, letters and affidavits or anything of that sort. The
only way to get the testimony would be to have the witnesses present
or have a deposition taken. What is your thinking about relaxing
the rule in that particular manner? Of course 1 the rule relating to
relevancy would be all right. I don't think that is much of a problem
but what would you have to say in connection with letting a letter or
maybe an affidavit of Dr. X go into the record rather than having to
bring Dr. X there to testify and subject him to cross-examination or
have a deposition gone through the usual procedures of evidence?
Mr. BERGER. May I say first, that here I would have to speak for
myself as distinguished from the bar association, because it hasn't been
considered by the association.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1987

Mr. KORJSTEGAY. Yes.

Mr. BERGER. B u t to the extent my own experience may be of any
help to you, my views, I will try to give you my views.
First, of course, you suggested in addition to having our roving
commissioners we would have the availability of depositions and in-
terrogatories. That, I recognize, might be a little cumbersome and
costly. This is not to be denied. As to your suggestion of an express
relaxation for affidavits, the experience of the administrators with
testimony of doctors is worth weighing. Over the years how much
weight have they come to attach to an affidavit from a doctor which
is not subject to cross-examination? If they find, in general, that
doctors dealt very honorably with them and you can rely on them,
well, then, such a relaxation as you suggested would make sense.
xVnd may I add, Mr. Chairman, to what you said on some of these
problems, j'ou are on a new frontier and law is empirical, it is experi-
mental, we shouldn't be afraid to adventure; we shouldn't be afraid
to try it. If the expedient of medical affidavits which you suggest
proves impractical or infeasible after a time, it should be discarded.
I t might be a useful suggestion.
Mr. KORNEGAY. I want to commend you for a number of things in
connection with this bill. You have presented a well laid out plan. I t
was laid out very clearly and with a great deal of aptitude.
As I understand your statement, if the authority were vested in you
to set up a court of appeals you would not tamper with the existing
setup and procedures for the Veterans' Administration at all but, let
them continue to operate as they operated in the past. That is where
94 percent of the claims are handled or would be handled.
Now, with respect to the remainder of 6 percent, you would create
an independent tribunal which would consist of commissioners which
for all practical purposes would serve as the trial court where the
testimony would be taken, witnesses sworn, heard, and counsel or
others representing claimants would be heard, and the Government
would be heard.
I t would be an adversary proceeding. I n the event justice, insofar
as the claimant was concerned, was not accomplished, he would have a
right of appeal to an appeals court consisting of three to five mem-
bers. There are various proposals on the number. This court would
hear the appeal on the record and on questions of law, and the final
decision or ultimate decision of the commissioner, and make a deci-
sion that would be final.
Now, what is your thinking on providing the Government, the
Veterans' Administration, with the right of appeal ?
Mr. BERGER. F r o m the hearing commissioners?
Mr. KORJJEGAY. The hearing commissioner.
Mr. BERGER. Yes. I, by all means, think so, because that is the way
to rationalize your legal principles. You may, at the outset have—
just guessing—15, 20, or 30 commissioners, and you would have prin-
ciples of law going all over the lot if there weren't a central deter-
mining bod}7, and the Government should have that chance to be sure
that the law is being carried out.
Mr. KORNEGAY. Do you have any questions, Mr. Downer?
1988 JUDICIAL REVIEW OF VETERANS' CLAIMS

SUBCOMMITTEE COUNSEL. Mr. Berger, if I understand you correctly,

I believe your proposal would actually be a trial court system, would
it not, and what we refer to as the "commissioner" would actually
decide the case?
Mr. BERGER. That is right.
SUBCOMMITTEE COUNSEL. Now, Mr. Berger, we have anticipated
that there might be an unusually large number of appeals in this field
which would involve only a question of law, and in such cases do you
think claims filed would be on a sufficiently considered record on
which to base such an appeal ?
Mr. BERGER. May I suggest a slight modification? Procure the
party, the claimant, and the Government to stipulate the facts. Then
you have presented a pure question of law. But where a claimant
says that the claim file inadequately presents facts, you can't go on.
If he is ready, you can tie it up. This, by the way, ties in with the
chairman's suggestion of res judicata. If he stipulated "These are
the facts," lie is forever foreclosed when the question is decided.
May I add one thing?
Here, too, you might consider in the interest of expediency whether
such a question of law on a stipulation shouldn't short circuit the
commissioners and let it be decided once and for all directly by the
court.
SUBCOMMITTEE COUNSEL. There is provision in the bill, Mr. Berger,
that the court may review the record or it may remand it to the Vet-
erans' Administration for further development or may reverse the
decision of the Administrator on it.
Mr. BERGER. This, Mr. Downer, is the customary formula when you
have had a record, but if your record is made up de novo by the com-
missioner, there is no occasion to remand for the taking of evidence.
That is the end of it. That record, subsequent to exception, goes up,
if there is an appeal from the commission. I t is final if there is no
appeal. No remanding. No further evidence.
SUBCOMMITTEE COUNSEL. Now Congress recently enacted a law
which became effective January 1, 1961, which requires the Board of
Veterans Appeals to make findings and conclusions of law on all their
decisions.
If an appeal is filed to a separate court, such as contemplated by
this bill, and if the appellant sets out certain findings of fact made by
the Board of Veterans Appeals as being contradicted by the record,
the court under this bill might review the case on the basis of the
claims filed and the contentions made by the appellant as to the con-
tradicted findings and reverse the case on that basis under this bill as
written.
Mr. BERGER. You are speaking of "this bill," being the bill under
consideration here?
SUBCOMMITTEE COUNSEL. Yes.
Mr. BERGER. Well, the earlier bill, which is now law, calling for
findings of fact and conclusions of law by the Board, presumably pre-
supposes that such findings will be made on the record, and in my own
judgment it will bring about the very result that seems to be undesir-
able, t h r t the Administration will have to have a record in all cases
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1989

so that the Board may make findings on the basis of a record. Or else
the Board will have to hold hearings on all appeals.
If I may be so bold, gentlemen, as to suggest, you don't want to
create a patchwork here after you studied this problem. You want to
come up with something that will work.
I t is not only important for the veterans but it is important for the
whole administrative process, because, let's recognize it, while there
have been administrative courts in the early days, there have only
been two or three and every one of these is looked at jealously by the
administrators throughout the Government.
When you launch one, it ought to be launched with an assurance of
success. That means you ought to examine possible frailties of your'
bill carefully.
I t seems to me that this bill may, were you to adopt the suggestion:
I made to you, require the revision of the earlier act, because to im-
pose the burden on the Board of making findings of fact and con-
clusions of law, that presupposes making up a record.
We are then back to Congressman Addabbo's suggestion, and that
suggestion has merit. I t just almost doubles the cases in which you
are going to make up records. When I say it "almost doubles," we
are talking about almost 25,000 cases. That is a lot of cases.
SUBCOMMITTEE COUNSEL. I want to be very brief about this, Mr.
Berger, but I would like you, please, to direct your attention to section
4056,1 believe, on page 7 of the bill, the authority before the Board of
Veterans Appeals, which reads:
Nothing in this chapter shall affect the authority of the Board of Veterans
Appeals to reopen any claim or review or reconsider any decision formerly made
by the Board.
Objection has been made under the doctrine of res judicata that a
case, once decided by the court proposed by this bill, that decision
would be final and conclusive and that claim could never be reopened
again.
I would like to ask you, as a lawyer, if, in your opinion, this section
of the bill would not be sufficient to permit the reopening of the claim
within the Administration.
Mr. BERGER. If I understand your question, it is whether section
4056 would allow the Board to reopen any claim after it has been
decided by the courts.
SUBCOMMITTEE COUNSEL. Yes.
Mr. BERGER. And you ask my personal opinion, would I favor that,
and I would say "No," because to begin with you make the court look
foolish. The claim has been submitted to the court. I t has been
studied. The court has attempted to do justice. That is what we are
drafting the whole bill for here, and then the court, for example,
denies the claim of a veteran and the Board, in its wisdom, comes
along and reconsiders, "Well, we think the court is wrong; Ave are
going to give you the justice you couldn't get in the court."
That is undesirable.
SUBCOMMITTEE COUNSEL. May I interrupt you, Mr. Berger, at this
point ? Previous provisions of the bill provide decisions of the court
would be final, that the administrators carry them out. I think it
1990 JUDICIAL REVIEW OF VETERANS' CLAIMS

was the intention of this section here, and perhaps it should be

amended somewhat, I think it was the intention of the section to per-
mit reopening within the Administration when new and material evi-
dence was presented.
Mr. BERGEK. Put that in express terms. This shouldn't be left to
conjecture. The Board may reopen upon the presentation of new
evidence, which was not available at the time of the hearing before
the Board or of the trial before the court. T h a t is different, but you
ought to be exceedingly zealous, it seems to me, to preserve the prestige
of your court.
I may add one more t h i n g : If you wish to say this in your legislative
history, it should always be open to the Board, before submission for
determination to your commissioner, to itself do the justice that a
claimant says has been denied to him. U p to that moment, if the
agency lias last moment doubts and say, "Well, we may have been
mistaken; let's do what the claimant urged." Before you had a sub-
mission of a case for determination, by the commissioner, even if a
claim is filed with the court, but before its determination, I would also
permit the Board to reconsider; but not after a determination of a
commissioner or the court. T h a t is too late.
Except, as Mr. Downer suggests, if there is new evidence; and if
I may suggest as a fellow who did a lot of drafting, in your legislative
act, spell it out.
SUBCOMMITTEE COUNSEL,. Thank you.
Mr. KORNEGAY. Of course, the jurisprudence of the land provides
for new trials on the grounds of discovery of new evidence; is that
right?
Mr. BERGER. Eight, sir.
Mr. KORNEGAY. Mr. Patterson ?
SUBCOMMITTEE COUNSEL. No questions.
Mr. KORNEGAY. Mr. Addabbo?
Mr. ADDABBO. No questions.
Mr. KORNEGAY. Let me ask one further question, Mr. Berger.
Insofar as the appeal from the commissioner to the full court or
to the appellate court is concerned, do you feel that the claimant and
the Government should have the right of appeal, the automatic right
of appeal, or should it be, as is the case in our Federal system, by writ
of certiorari.
Mr. BERGER. Let's bear in mind here, Mr. Congressman, that you
have cut off an appeal to a court of appeals and a writ to the Supreme
Court. I would be predisposed to give the right of appeal to both par-
ties, the Government and to the court, bearing in mind t h a t you are
going to have probably new and untried men in a field with which
they are perhaps unfamiliar, also that the bulk of these appeals will
come only in the first couple of years, then will precipitously drop.
I finally add even in the Supreme Court, it often has been mysterious
to me what the criteria for the grant of a writ are. I often wish I
had a right rather than just a matter of grace.
Mr. KORNEGAY. Mr. Berger, again let us thank you and the Amer-
ican Bar Association for the splendid presentation which you have
made here.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1991

Mr. BERGEE. Let me say to you, in turn, it is genuinely a privilege to

appear here before you.
We regard ourselves as fellow workers. We applaud what you have
done in the past. We think you are taking part in a very badly needed
reevaluation of how the administrative process works, which is under-
way, and I feel proud of the way in which you have acquitted your-
selves.
Mr. KORNEGAY. Thank you.
Mr. BERGER. Thank }rou.
Mr. KORNEGAY. The subcommittee has received a statement from
Congressman Glenard P . Lipscomb, which will be inserted in the
record at this point.
(The statement referred to is as follows:)
STATEMENT BY REPRESENTATIVE GLENARD P. LIPSCOMB
Mr. Chairman, I appreciate the opportunity to submit a statement to the Vet-
erans' Affairs Committee in behalf of H.R. 4134 which proposes the establish-
ment of a Court of Veterans' Appeals.
I wish to say also that I am happy to join with the chairman and various other
colleagues as a cosponsor of legislation to establish such a court to which claim-
ants under veterans' benefits programs would be permitted to appeal decisions of
the Board of Veterans' Appeals on their compensation and pension claims.
It is my firm belief that it is necessary to provide judicial review procedures
such as embodied in this legislation to protect fully the welfare and interests
of our veterans who have served their Nation, and, needless to say, in many
cases at great personal sacrifice.
Increasingly over the years, I have been concerned over the situation many
veterans are faced with in connection with their claims before the Veterans' Ad-
ministration which under present law not only administers veterans benefit leg-
islation but through the Board of Veterans' Appeals acts as final arbiter of its
own decisions. I t is my experience that veteran claims have been rejected even
though it appeared there could have been ample room for honest reasonable dif-
ferences of opinion.
As just one example, pending before the Veterans' Administration at the
present time is a claim involving a veteran, a resident of the congressional
district I represent. This claim has been turned down on each occasion it came
before the Board of Veterans' Appeals.
During the several years I have been following this matter I have had oc-
casion to discuss the claim and its merits with a number of people who were in
some way interested in or working on problems pertaining to veterans. I t has
been my impression that there is general agreement among all these persons
that the case presents a meritorius claim. The only dissenting vote to this view,
it seems, is the Board of Veterans' Appeals.
Still, under present law, there is no appeal to this case. I t stops right in its
tracks, unless those who made the original decision should themselves decide
to reconsider the matter. Obviously, it cannot be claimed that the decision in
this matter would necessarily be reversed by a Court of Veterans' Appeals as
proposed by the bill, nor is that the reason for my introducing the measure.
But I feel strongly that this is a prime example of a matter on which machinery
to secure an independent review should be available.
Underlying my position on the merits of this proposal for an appeal procedure
is, of course, the conviction that veterans' benefits are in no sense gratuities to
the beneficiaries. To be sure, these benefits in a sense represent the gratitude of
the Nation for a job well done. But more than that, they represent the judg-
ment of the Congress as to the compensation and pension benefits which rightly
should be accorded to qualified veterans and their families. I t follows, of course,
that Congress has a vital interest in seeing that the veterans' programs are
fairly and equitably administered.
I hasten to add that this in no way is criticism of the Veterans' Administra-
tion. To my knowledge the Veterans' Administration has always exercised the
utmost in good faith and conscientiousness in administering the veterans' pro-
grams, and certainly has accorded me every courtesy.
1992 JUDICIAL REVIEW OF VETERANS' CLAIMS

But at the same time, I believe it is vital that we have complete objectivity
and uniformity in appraising and evaluating veterans pension and compensation
claims, and it is my opinion that creation of an independent court is the most
helpful and proper way to achieve this.
Mr. KORNEGAT. We will adjourn the subcommittee until Thursday,
March 1, at 10 a.m.
(Whereupon, at 11:30 a.m., the subcommittee adjourned to re-
convene Thursday, March 1,1962, at 10 a.m.)
 JUDICIAL REVIEW OF VETERANS' CLAIMS

T H U R S D A Y , M A R C H 1, 1962

HOUSE OF REPRESENTATIVES,
STJBCOMITTEE OF THE COMMITTEE OX VETERANS' AFFAIRS,
Washington, D.C.
The subcommittee met, pursuant to call, at 10 a.m., in room 356, Old
House Office Building, Hon. Horace N. Komegay presiding.
Present: Representatives Kornegay, Haley, Addabbo, Saylor, and
Ellsworth.
Mr. HALEY (presiding). The committee will be in order.
I believe the first witness we have this morning is Mr. Brickfield.
Mr. Brickfield?
STATEMENT OF CYRIL F. BRICKFIELD, GENERAL COUNSEL, VETER-
ANS' ADMINISTRATION; ACCOMPANIED BY JAMES W. STANCLL,
CHAIRMAN, BOARD OF VETERANS' APPEALS; AND ARTHUR
FARMER, DIRECTOR, COMPENSATIONS AND PENSIONS
Mr. HALEY. Please come forward and give me your counsel and
advice.
Mr. Brickfield, identify your colleagues.
Mr. BRICKFFELD. Mr. Chairman, my name is Cyril F . Brickfield,
and I am General Counsel of the Veterans' Administration.
This morning I am accompanied by Mr. James Stancil, who is
Chairman of the Board of Veterans' Appeals, and also by Mr. A r t h u r
Farmer, who is Director of the Compensation and Pension Service.
I n addition, we have five or six other staff members who are here
in the event that they are needed to answer any questions which the
committee might promulgate.
Mr. HALEY. Thank you very much, Mr. Brickfield. We are glad
to have you and your colleagues here. You may proceed, sir.
Mr. BRICKFIELD. Thank you.
Mr. Chairman and members of the subcommittee, we appreciate
the opportunity to be here and discuss with you not only the question
of whether a court review of decisions of the Administrator of Vet-
erans' Affairs should be authorized, but also the more general questions
of what has been accomplished by way of improving our appellate
procedures.
You have the Administrator's report of May 25, 1961, opposing a
court review of veterans' claims matters. While the report was di-
rected toward specific bills—H.R. 775 introduced by Mr. Saylor and
H.R. 849 introduced by Chairman Teague—to establish a Court of Vet-
erans' Appeals to review the decisions of the existing Board of Vet-
1993
S00S2—62 18
 1994 JUDICIAL REVIEW OF VETERANS' CLAIMS

erans' Appeals in the Veterans' Administration, it is equally applicable

to all of such bills pending before the committee.
During the approximately 9 months since the filing of that report
we have given further consideration to the entire question and have
concluded that we must adhere to the view that a provision for judicial
review of veterans' claims would not be desirable.
We feel strongly that it will be most unfortunate for the Vet-
erans' Administration, as the agency responsible for the administra-
tion of veterans' benefits, to be placed in an adversary position with
respect to the claimant—as would be done for the first time by these
bills—and that there is a danger that this philosophy would filter
down through our adjudication processes.
Moreover, we are concerned that, regardless of what informality
you attempt to build into any bill establishing a Court of Veterans'
Appeals, the fact that a court review existed would induce a rigidity
and inflexibility into our procedures not only in the Board of Vet-
erans Appeals but in the agencies of original jurisdiction as well.
This could be disadvantageous to veteran claimants. For example,
the Board of Veterans' Appeals is liberal in granting reconsideration
of veterans' appeals. A claim can always be reopened upon the sub-
mission of new material evidence. I t seem unquestionable that the
right to reopen or request reconsideration in the Veterans' Adminis-
tration would, as a practical matter, be impaired, since it is only
natural that the Board would be reluctant to reverse a formal court
decision.
There are also certain practical considerations working against the
effective operation of a Court of Veterans' Appeals. The number of
cases appealed to the court would probably be very large compared to
the docket of existing courts.
F o r example, if only 10 percent of the present Board of Veterans'
Appeals workload of 38,000 cases per year appealed to the court, this
would mean a docket of 3,800 cases annually: a workload more than
all of the 11 U.S. circuit courts of appeals and more than twice that
the Court of Claims in fiscal year 1961. Also a court, unless equipped
with a medical staff to analyze and interpret medical findings and
records, would lack the expertise necessary for the consideration of
a veteran's claim.
Finally, you no doubt realize that creation of a new appellate sys-
tem, as here proposed, would result in substantial cost.
We believe that the Board of Veterans' Appeals, although located
within the Veterans' Administration, gives a fair and impartial ap-
pellate consideration to a veteran's claim. The Board of Veterans'
Appeals provides speedy and informal procedure. I t is staffed by
persons who are experts in their fields—medical questions, rating
practices and principles, and applicable law—and thus can receive
and evaluate all types of evidence—not limited by the technical rules
of evidence applicable in court proceedings.
Appeals to the Board are not on an adversary basis and there is
no expense to the claimant. I t is significant that approximately 74
percent of the appellants chose to be represented before the Board
by one of the veterans' organizations. I t is questionable whether any
large number of attorneys would be willing to specialize in veterans'
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1995

laws and the medical questions involved and thus acquire the detailed
knowledge necessary for effective presentation of veterans' claims.
I n effect the Board is in a position of an independent court insofar
as weighing the merits of individual cases and determining their
proper disposition under VA regulations, instructions, and Adminis-
trator's decisions.
The Board is dealing solelj' with cases which have already been
denied by the agencies of original jurisdiction and its whole orienta-
tion is to- determine whether there is a way to grant the case. The
Board has been completely divorced from policymaking. VA regu-
lations are initiated by the operating department and approved by the
Administrator without referral to the Board.
The soundness of this approach is emphasized by the fact that
although there have been, as is to be expected, expressions of dis-
satisfaction the basic law has remained virtually unchanged for more
than 30 years. By way of contrast, the many veterans' appellate
systems attempted before 1933 had a life of a few years at best.
I think it would also be of interest to the committee to briefly out-
line the changes affecting the decisionmaking process which have been
made since the appearance before the special subcommittee 2 years
ago:
(1) The time for consideration of individual cases has been
increased.
(2) Additional funds for increasing the professional staff have
been provided.
(3) The Board has been reorganized to place the consultants
directly under the Board sections to which they are assigned.
(4) Training programs for professional personnel have been
stepped up.
(5) A quality review system has been placed into effect.
(6) The Board has been divorced from policymaking.
(7) Remanded appeals are now restored to their original
position on the docket.
(8) Periodic visits to field offices for hearings have been
continued.
(9) A revised procedure for reconsidering all allegations of
error has proved successful.
(10) A new format of decisions to implement Public Law 87-97
and containing separately stated findings of fact and conclusions
of law was placed in effect prior to January 1, 1962.
I would like to further explain the efforts which have been made
to improve the Board's operations, since I think that they are very
important.
Concern was expressed at the last hearings on the time available
to members of a section of the Board on each individual case, with
the heavy volume of cases—about 38,000 per year.
This, of course, has been of concern to the VA. W e have made
progress. The number of sections of the Board have been increased
from 11 to 14. On the basis of an annual worldoad of 38,000 cases, the
average time available for section consideration of each case has been
increased from about 90 minutes to about 115 minutes. This is an
increase of 25 minutes or about 28 percent per case. Let me emphasize
1996 JUDICIAL REVIEW OF VETERANS' CLAIMS

that this is after initial research and preparation of tentative decision

by the consultant staff, which, for the average case, is about 4 hours.
I n addition, with the supplemental allotment of funds by the Ad-
ministrator, the professional staff of doctors and lawyers assisting the
sections of the Board has been expanded. I t is their function to re-
lieve the members of the Board of the majority of research and
preparation of tentative decisions which leaves them free to devote full
time to the most important phases of their work—the evaluation of
the conflicting evidence and the promulgation of final decisions.
As compared to 84 consultants 2 years ago, the Board now has 92,
and expects to have 105 by the end of the year. The budget request
for fiscal vear 1963, based on standards which have been developed,
calls for 109.
I n August 1960, a sweeping reorganization of the professional staff
placed the consultants directly under the supervision of the Board
sections to which they were assigned. This was directed toward in-
creased training, supervision, and quality control.
The Board has stepped up its training program for professional
personnel. We have a regular and continuing program of instruction
in the application of the schedule for rating disabilities, and on other
pertinent phases of medicine and law. A chief consultant has been
assigned to every section of the Board with primary responsibility for
training and developing our people toward higher productive and
quality goals.
I n an effort to attain the highest level of quality decisions, the
Board in July 1961 installed a formalized, full-scale quality review
system. This replaced reliance solely on the review of isolated prob-
lem cases previously done by the Chairman and Vice Chairman—which
is still clone. This review is accomplished by a quality review com-
mittee which critically reviews decisions on a sampling basis, selected
at random. This sj'stem has proved effective. A steady, gradual in-
crease in quality has been reflected during the six quarters the system
has been in full operation.
I n order to achieve judicial detachment and autonomy, the Board
has been completely divorced from participation in the coordination
process in the development and formulation of policy. This does not
limit the Chairman's right, however, to bring to the attention of the
Administrator any matter which the Board's experience indicates
should receive the Administrator's further consideration.
Procedure relating to cases remanded to field offices for further de-
velopment has been improved to expedite completion of all develop-
ment and return of the cases to the Board. I n recognition of the delay
occasioned by remand action, remanded appeals returned to the Board
are now restored to their original position on the docket, which gives
them priority over newly docketed cases. We think this is fair and
equitable.
The Board has continued the program of periodic visits to field
offices to conduct hearings. This was reinstituted in November 1958.
Since that time, sections of the Board have visited all offices within
the continental United States at least once, except for small offices
where the workload has not justified visits. Sections are continuing
to visit about 22 offices each year. The Board would like to expand
this service. This will receive consideration when the workload per-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1997

mits. Since the last appearance before the committee, 1,012 hearings
have been conducted by the associate members in field offices.
As pointed out at the prior hearings, we have adopted a revised
procedure for rehearings on allegations of error. This procedure
rovides for reconsideration of cases in a manner similar to the en
E anc process of appellate courts. I n the 2 years it has been in effect,
the results have been gratifying. The procedure has not been abused
by claimants or representatives. I n fact, our experience has shown
the opposite. I t has reduced by one-fourth the number of reconsidera-
tions.
Lastly, Public Law 87-97 lias been implemented by the adoption
of the new format of decisions containing separately stated findings
of fact and conclusions of law. Conversion was completed December
•4^ ahead of the January 1 effective date provided in the law. Con-
version Avas accomplished on a progressive basis over a period of a
year beginning in December 1960, in order to maintain an effective
balance between timeliness of decisions and quality goals.
Without doubt, the inclusion of separately stated findings of fact
and conclusions of law has improved the degree of acceptance of the
Board's decisions. Service organization representatives tell us this.
We realize these decisions are not perfect, but we are constantly striv-
ing to improve their quality.
Since the committee has evidenced special interest in the past in
the scarcity of dissents to Board decisions I believe an explanation
of this subject would be helpful.
While dissents over a number of years averaged about 14, the Board
had 38 last fiscal year and 27 in the first 7 months this year.
The number of dissents is not the true criterion for evaluation.
They must be considered in the light of other factors which materially
affect the dissent rate.
I n addition to the 3,831 cases allowed last year, the Board remanded
3,077 for further development. Every possibility for evidentiary de-
velopment is exhausted before a case is denied. Where one member
feels that additional development may be productive, the other mem-
bers usually do not object to obtaining additional evidence before
attempting to make a final decision, eliminating the dissents in a large
number of cases. Of the total remands last year, about one-fourth
were allowed in the field, eliminating necessity for further appellate
consideration.
I n addition, resolution of reasonable doubt in favor of the veteran
eliminates many of the dissents which would normally occur if the
doctrine were not for application. Obviously, there are going to be
far fewer dissents than under judicial procedures where this does not
obtain.
The availability and informality of the appellate process, without
cost, leads to a higher percentage of appeals without too much merit,
in which there is no reasonable basis for a dissent.
I n conclusion, I would like to assure the committee of our awareness
that most of the arguments I have presented against judicial review
are not new and have been presented during previous hearings. Of
particular importance, we feel, have been our reports as to progress
made in the procedural improvements to which we committed our-
selves during the last hearing. I would, however, like to interject
1998 JUDICIAL REVIEW OF VETERANS' CLAIMS

some additional comments touching on considerations that I do not

believe have been given the attention they deserve in earlier hearings.
The pros and cons of judicial review have been extensively dis-
cussed. We believe that everyone interested in this subject, however,
regardless of his position, has one fundamental objective and that is
fair and thorough adjudication of claims submitted by veterans and
their dependents. We do not, for example, believe that even the most
ardent proponents of judicial review have as their purpose the grant-
ing of more claims. Rather, they favor a court in the hope that an
additional level of review will serve to further assure that every
claimant gets what he is entitled to under the liberal criteria provided
by law and no more.
If I am correct in this assumption, well, then I would submit to
you that neither those cases that might go before this court, nor even
those cases currently the subject of appellate consideration by the
Board of Veterans Appeals constitute our main concern in improving
the quality and uniformity of our decisions. The emphasis is, and
should continue to be, upon the more than 1% million adjudications
involving a potentially appellate issue made at the level of original
jurisdiction each year. Only 43,000 of these decisions are appealed
to the Board of Veterans Appeals and surely only a very small per-
centage of that number would be ultimately brought before a court
of veterans appeals.
Even before the judicial review hearings held in April and May
of 1960, plans were being developed in our Department of Veterans
Benefits to focus more attention on the quality and validitj 7 of sections
in the initial jurisdiction.
I t was recognized then, and continues to be recognized now, that
the local rating boards have had to devote too much of their time
since World W a r I I toward the reduction of backlogs. The emphasis
now that those workloads are at more reasonable levels is on the quality
of the actions we take at the point of original jurisdiction.
In J a n u a r y of this year, the Compensation and Pension Service,.
Department of Veterans Benefits started a quality review of a large
sample of adjudicative actions taken throughout the country.
This sample is selected on a random basis and covers every type of
action taken at the regional office level. Over 30,000 cases will be
reviewed by a centralized review group in Washington each year.
The types of errors they will look for, document, and bring to the at-
tention of the office concerned will not only be directed toward the
propriety of final actions, such as allowances and disallowances, but
will also determine whether proper development was accomplished.
Was every avenue of available evidence thoroughly investigated?
W a s correspondence with a veteran clear as to what he must do t o
perfect his claim? Did notification to him of adverse action fully
explain the issues involved, the evidence on each issue, and the reasons,
why favorable action could not be taken ?
I consider this most important. Adjudication of all claims in ac-
cord with the full intent of the law is not achieved through considera-
tion of a few cases at the appellate level, nor with review of even a
smaller handful by a court. The basic goal of proper, uniform, and
equitable decisions must be achieved where the vast bulk of the work
is done—at the source of original decision.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 1999

Thank you very much, Mr. Chairman, for permitting me to read

the statement.
Mr. KORNEGAY (presiding). Thank you, Mr. Brickfield. I apolo-
gize for being late, but I had to go by another committee in order that
they might have a quorum.
To start with, Mr. Haley, on my left, are there questions?
Mr. HALEY. Mr. Brickfield, I know, of course, of the official opposi-
tion of the Veterans' Administration to the bill H.R. 857, requiring
statement of cases to be attached to appeals being considered by the
Board of Veterans Appeals. Without trying to embarrass you in any
way, sir, do you feel that there is any avenue of approach here which
we could pursue which, would be helpful, not only to the veteran, but
also to improving the administrative process ?
Mr. BRICKFIELD. Well, Mr. Haley, we are always looking for ways
of improvement.
Legislation pending before this committee, H.R. 857, introduced by
Mr. Teague on January 3,1961, in an interesting and far-reaching bill
directed toward this situation. While we did not recommend enact-
ment of H.R. 857 in our report of May 25, 1961, for several reasons,
particularly our uncertainty as to the overall purpose of the bill, we
concede that, with certain modifications, it could accomplish a worth-
while improvement in due process.
H.R. 857 would require, in cases appealed to the Board of Veterans'
Appeals, that the agency of original jurisdiction prepare a statement
of facts in the case, the law applicable and a discussion of the applica-
tion of the law to the facts, together with recommendations with
respect to the disposition of the appeal. This statement would be fur-
nished to the appellant for the purpose of obtaining his concurrence
in the accuracy of the statement. I n the event of nonconcurrence the
appellant would be required to furnish exceptions to the statement.
If concurrence were not obtained or exceptions filed within a specified
time, the appeal would be dismissed. If legislation along those lines
is to be favorably considered we suggest modifications in the bill which
would provide the dissatisfied claimant with the information as now
required by the bill, be applicable to a greater number of cases and
eliminate the penalty of dismissal of the appeal for failure to concur
or furnish exceptions.
Specifically, we suggest that it would be workable to require that
in all cases in which the claimant expresses dissatisfaction with or ob-
jection to the decision of the agency of original jurisdiction on any
issue, that the agency prepare—
(a) A summary of the evidence in the case pertaining to the
issue as to which there is dissatisfaction;
(&) A discussion of the pertinent law, regulations and provi-
sions of the Schedide for Rating Disabilities where applicable ;
(c) The decision on the issue and a summary of the reasons
therefor.
This "statement of the case" would be furnished the claimant and
his representative if there is one. H e would, as in the past, be advised
of his right to appeal, and required to set out in his appeal allegations
of error of fact or law and urged to relate sucli to specific items in the
statement of the case. If an appeal is filed which is defective in spec-
2000 JUDICIAL REVIEW OF VETERANS' CLAIMS

ification of errors of fact or law the agency of original jurisdiction

would advise the claimant of the deficiencies and seek to have the ap-
peal amended, but the final determination as to the adequacy of the
appeal would be made by the Board of Veterans' Appeals.
The bill, modified as suggested, would, in our opinion, have these
effects:
(a) The complete explanation of the evidence and law would
eliminate many appeals based on misunderstanding rather than
belief of error.
(b) The claimant would be afforded an opportunity (1) to
furnish new and material evidence in instances wherein the rec-
ord was incomplete, and (2) to more effectively present his con-
tentions on appeal.
(c) The implications of an adversary proceeding which are
inherent in H.R. 857 as now drafted would be avoided.
(d) Lighten the burden of the Board of Veterans' Appeals in
that the issues for its consideration would be more specifically
delineated.
There are 42,700 cases appealed annually. There are a number
in addition to this in which dissatisfaction is expressed with the initial
decision but in which for various reasons appeals are never filed. We
estimate that the total cases to be included under the suggested pro-
cedure would be approximately 60,000 annually. At the request of the
Chairman of the House Veterans' Affairs Committee, a pilot study
was conducted of 100 cases under a procedure resembling that pre-
scribed by H.R. 857 as now drafted. This study was restricted to an
outline or index of the material rather than a complete analysis of
the evidence, and full discussion of the pertinent law and regulation.
The average cost of preparing these summaries was $21.29. These
summaries were furnished to accredited representatives but not to the
claimants. They were not adequate and under the modifications,
we are suggesting these costs would necessarily be substantially in-
creased.
H.R. 857 provides that no disclosure of any matters will be made
to a claimant when such disclosure would be injurious to his physical
or mental health. There are a significant number of cases in this
category and broad discretion would necessarily have to be delegated
to medical authorities and adjudicating officials at the local level to
determine the cases in which disclosure can be safely made. The
largest category are those cases involving the more serious psychiatric
disorders. If the claimant is incompetent, disclosure may be made
to his guardian in some cases. I n others where his guardian or
custodian is a close family member as his wife, full disclosure would
be just as harmful as if made to the claimant. Other cases in which
the full facts may not be disclosed are diseases where the prognosis
is poor, as in malignancies, and those of misconduct origin, wherein
the claimant would not desire the information to come into his home.
If these claimants have accredited representatives, there would be no
particular problem. If they do not, the "statement of the case" would
have to be modified to eliminate material which would be injurious to
the health or welfare of the claimant but to still contain all the in-
formation which could safely be furnished.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2001

I n view of the broad discretion which must be exercised to protect

the claimant and insure due process within the framework of bene-
ficial legislation, we believe that any legislation in this area should
be in the broadest of terms to allow the Administrator the maximum
leeway in his administration. We are not advocating at this time the
enactment of H.E. 857, even if modified as suggested. There would
be a substantial administrative cost and we have not resolved in our
own minds the relationship of such a proposal to the administration's
program and have not thus far discussed with the Bureau of the
Budget the question of whether the improvement would justify these
expenses.
Mr. HALEY. That creation of a review court, or whatever you want
to call it here, inasmuch as veterans' cases, and I find this probably
true, that you look very sympathetically on the veteran's side of a
case, and normally, you kind of give him the benefit of the doubt, do
you not?
Mr. BRICKFIELD. Yes, sir.
Mr. HALEY. Would that be the same situation if a court was set up,
would the veteran not be somewhat in a position of where he would
have a more formal atmosphere and probably the law and so forth
would be a little more rigid than you have now ?
Mr. BRICKFIELD. Well, we would still continue to give the veterans
the benefit of a reasonable doubt. But I do think, Mr. Haley, as the
American Legion representative pointed out the other clay, you would
have more formalization and more rigidity, for the simple reason
that when you put a formal court on top of an informal process, wliich
we now have in the Board of Veterans' Appeals, then the informal
must necessarily become formalized.
Mr. HALEY. And this court, of course, would be governed and con-
trolled by more or less the written evidence before it anyway, would
it not, and he would not feel even inclined to go beyond the formal
written data before him, would he ?
Mr. BRICKFIELD. NO, Mr. Haley. These bills that are before us
provide that the court can look at the record which the Board of
Veterans' Appeals promulgates. However, it also gives the court
authority to have its commissioners take new evidence, swear in wit-
nesses, have cross-examination, and develop still a further record.
So what this court would be looking at would be really in some
instance not a review of the Board of Veterans' Appeals but would
be looking at a review of the case as developed by one of its commis-
sioners, which could be substantially different from the record on
which the Board of Appeals decides the case.
Mr. HALEY. Well, now, of course the veteran himself would be
placed in the position of having to obtain legal counsel, would he not?
Mr. BRICKFIELD. Well, here again the bill is not too definite and cer-
tain. B u t if the veteran went before the court—that is, the judges of
the court—he would, I believe, be represented by an attorney. If he
went before a commissioner of the court, I think the understanding is
that a service organization could represent him.
Mr. HALEY. Well, due to, usually, the small amounts involved, do
you think that there would be many attorneys who would more or
less specialize in this field? I t seems to me like his fees would be so
2002 JUDICIAL REVIEW OF VETERANS' CLAIMS

small, based on what might be obtained by the veteran, that he would

be placed in the position of where sometimes the attorneys' fees would
take away all that he receives.
Mr. BRICKFIELD. I think that is a very true statement. Many times
the veteran is looking for an increase of from maybe $30 to $50 a
month and if he is going to hire an attorney to prosecute his claim, the
attorney will want a reasonable fee.for his services. I think that un-
less a bill provides that the attorney is entitled to reasonable fees, j-ou
would have a reluctance on the p a r t of many of them to take such cases.
Mr. HALEY. Even now, isn't it true, with respect to you, that it is
pretty hard for a veteran who feels that he cannot adequately present
his case, he has a rather difficult time paying a lawyer, and this is more
or less of a specialized field; is it not ?
Mr. BRICKFIELD. Well, he does. He has a hard time finding a lawyer,
but, happily, today, of course, we have our service organizations, which
represent the veteran and his claim without charge.
I might say that these people, while they are not lawyers, generally
speaking, are very capable and well organized, and they do present
the veteran's claim in a very strong fashion.
Mr. HALEY. Under the proposed bills, would these veterans' organ-
izations be allowed to continue before this court ?
Mr. BRICKFIELD. Well, here again, Mr. Haley, I understand that
the author of the bill divides the court into two p a r t s ; the part of
the court which is made up of the 5 judges and then that part of the
court which is made up of the 50 commissioners.
I suppose you might call it the higher and lower echelons of the
court. Certainly before the court, you would need an attorney. But
before the commissioners, I believe the bill would permit the service
organizations to appear.
Mr. HALEY. As a rule, these service organizations—as I stated the
other day, in my State we have what we call a county service officer
who, while maybe not a lawyer, nevertheless is a specialist in this field.
H e is paid by the general funds of the county. Of course it is his
duty to represent any veteran, and it seems to me that they do a fairly
capable job of presenting these matters.
Mr. BRICKFIELD. I agree in that observation, Mr. Haley. I think
they do a fine job.
But I would like to make this further observation: The only court
in our Federal structure where they permit nonattorneys to practice
is the Tax Court. This came about, really, because of the so-called
grandfather clause. Those nonlawyers were practicing before the old
Board of Tax Appeals. When they made this appeals board a tax
court, they permitted these expert consultants to practice before the
court itself.
Now, the important tiling to remember, however, is this: We could
give grandfather rights to veterans' organizations and they would
practice before this Court of Veterans' Appeals. The experience,
however, down at the Tax Court is that today, as distinguished from
the time the court was first organized, there are very few nonlawyers
practicing before the Tax Court. There is only a handful.
Now, if you can base an observation on experience. I think you could
logically say that maybe within a term of reasonable years, a service
organization's representatives would dwindle in number in the prac-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2003

tice before this Court of Veterans' Appeals, especially when, as years

go by, you develop rules of evidence in court procedures and that get
more technical.
Mr. HALEY. Well, of course, practicing before a court of tax appeals,
you normally have an accountant and people like that. They are spe-
cialists in. their field, too.
Mr. BRICKFIELD. T h a t is right; but there are fewer and fewer of
them every day in the Tax Court, Mr. Haley, that is the point.
Mr. HALEY. Yes; I am well aware of that fact, being an accountant
myself. The laws are getting so complicated that unless a fellow
stays right with it, he is pretty much out of luck.
That is all; thank you.
Mr. KORNEGAY. Mr. Say lor ?
Mr. SAYLOR. Mr. Brickfield, I appreciate your coming up here be-
fore us and presenting the views of the Veterans' Administration.
As General Counsel, I would like to say that in my opinion, you
have done a very admirable job with a bad case.
Mr. BRICKFIELD. Bad cases make bad law, too, Mr. Saylor.
Mr. SAYLOR. The bad case grows out of the fact that the Veterans'
Administration, created by Congress, with certain jurisdiction, now
comes before this committee of the Congress and states that, having
been a creature of it, and having been in existence for 30-some years,
you are now telling your progenitor that you are so good that he
•should not look at you and determine that any changes should be
made.
Mr. BRICKFIELD. I do not think that is a fair statement, Mr. Saylor.
Mr. SAYLOR. Well, I do.
Mr. BRICKFIELD. We do not say that
Mr. SAYLOR. Well, I do, because you are putting yourself in a posi-
tion now, and the Veterans' Administration is coming before this
committee and telling us that we should not look at you, we should
not change you, and this is completely contrary to our system of
government.
Mr. BRICKFIELD. NO ; we invite examination and, Mr. Saylor, we are
always before you. The Veterans' Administration is in a peculiar
position. I think we are the only independent agency of Govern-
ment which has a committee of Coiigress dedicated to looking over its
shoulder. And we are always under examination. We are only here
today giving you our best views on the question of judicial review.
W e think that our appellate procedures within the Veterans' Admin-
istration organization can be improved, but just as the Judicial Con-
ference of the United States, which is made up of the Chief Justice and
all the chief circuit judges, comes to Congress and gives Congress its
advice and views, so also we come here to give you our views based on
our experience.
And I think this is a good thing.
Mr. SAYLOR. I think it is a good thing that you are here, but I still
maintain that, having been created by Congress, the position that you
find yourself in today is that 3'ou are telling this committee that you
feel that we should not make any change in an act that we created
30 years ago.
Mr. BRICKFIELD. That is right.
2004 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. SATLOK. You are now not only the creature of Congress, you
are also being judge and jury.
Mr. BRICKFIELD. NO, sir; because in other areas, for example a bill
on compensation or pension benefits, we come up to this committee and
give them our best view and the committee weighs it and judges it and
makes a decision.
So also we are here on judicial review to give you our experience
and our views. And I might say we do this on every bill that the
committee holds hearings on.
Mr. SAYLOR. This is true, and sometimes you come up in favor of
them and sometimes you come up against them.
Mr. BRICKFIELD. That is right, sir.
Mr. SAYLOR. But this bill is particularly looking at you as a creature
that this Congress created. Therefore, I think you are in an entirely
different position in this hearing than in any other hearing.
Mr. BRICKFIELD. I think not. Every law that Congress passes per-
taining to veterans, the Veterans' Administration administers.
Now, on the question of lawsmaking awards for compensation and
pension, we administer them. We do it through adjudication, local
rating boards, and the Board of Veterans' Appeals.
We are in no different position here than in any other area of law
we administer.
Mr. SAYLOR. Let us look at your statement on page 2. You state
that it would be most unfortunate for the Veterans' Administration
to be placed in an adversary position. J u s t why would you, as the
Veterans' Administration, in any case the Court of Veterans' Appeals
would set up, be placed in an adversary position?
Mr. BRICKFIELD. First of all, the court, any court entertains only
cases and controversies. That means an adversary proceeding.
Here we would have an appeal from a decision of the Board of Vet-
erans' Appeals. Who would represent the Government in this case?
Probably the Department of Justice.
Now, if you had the Department of Justice on one side and the
claimant and his attorney on the other side, then I think you have
an adversary proceeding. That is not so in the V.A. today. Today
we have nonadversary proceedings. We have really an ex parte pro-
ceeding today. The veteran comes in and puts in all the evidence he
can. Our people are oriented to help make out a case. Now, this is
going to be changed by this bill and this is one of the reasons—there
are others—that we fee] that it isn't good policy.
Mr. SAYLOR. Well, I disagree with your conclusion.
Now, in the second paragraph on that page, you make the state-
ment that the right to reopen or request reconsideration would as a
practical matter be impaired, since it is only natural that the Board
would be reluctant to reverse a formal court decision.
Mr. BRICKFIELD. That is right, sir.
Mr. SAYLOR. NOW, one of the representatives of a service organiza-
tion made a very facetious remark with regard to a section of t h e
bills that are before us, with regard to the manner in which they were
drafted. B u t I think the very fact that that section is in all of these
bills indicates that it is not the intention of this committee, on consid-
ering this review, to make it impractical or to impair rights of any
veteran to present new or additional evidence. And if the language
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2005

which we have drafted in this bill does not do it, then I would appre-
ciate any assistance that the counsel of Veterans' Administration could
give to this committee, for the purpose of making sure that this did
not occur.
Mr. BRICKFIELD. I really think, Mr. Saylor, and you can correct
me, since you are the author of the bill, I think the language is am-
biguous in that particular section and that you really intend that the
Board could reconsider a court's decision if there was new and
material material evidence presented.
That is how I read it. The question, then, is this: What kind of
new and material evidence would you consider?
Mr. SAYLOR. The same kind you consider today.
Mr. BRICKFIELD. Yes; but it would have to be of such a nature in
order to be successful, as to swing the balance in favor of the claimant
to upset the court's decision.
Otherwise, he is doing a useless thing.
Mr. SAYLOR. Well, I might tell you, Mr. Brickfield, that many
veterans are doing useless things in presenting new and additional
evidence to your present Board of Veterans' Appeals.
Mr. BRICKFIELD. YOU say new and additional—new and material
evidence.
Mr. SAYLOR. YOU have records down there that will show that the
Board has stated that this is just "cumulative."
Mr. BRICKFIELD. T h a t is right.
Mr. SAYLOR. When does cumulation become enough to become pre-
ponderance of the evidence or resolve it, and this problem will still
exist?
Mr. BRICKFIELD. Mr. Saylor, as a lawyer, you cannot give a definite
answer to that question. Your opinion, in good faith, could differ
from mine as to when cumulative evidence does become really material
and decisive. I say to you that if you have any case which we have
decided on the question of cumulative evidence, we would like to
hear about it and we will give you the reasons why we feel the evidence
was strictly cumulative and not material.
I do not know how to be more responsive, sir. As you know, it is a
question of opinion as to what is cumulative evidence.
Mr. SAYLOR. This is a question of opinion.
Mr. BRICKFIELD. B u t if you have a case in mind we will give you
our reasons as to why we think the evidence is cumulative.
Mr. SAYLOR. Here again, Mr. Brickfield, you and through you, the
Board of Veterans' Appeals, is being both judge and jury. All that
we are trying to do is to make sure that someone looks over the
shoulder of the Board of Veterans' Appeals.
Mr. BRICKFIELD. Well, Mr. Saylor, you said judge and jury and also,
I hope, you will say claimants' attorney as well.
Mr. SAYLOR. N O ; j'ou are not the claimant's attorney. You are far
from the claimant's attorney, because it is really an adversary pro-
ceeding.
Mr. BRICKFIELD. Today before the Veterans' Administration, when
a man goes before the V A representative, I would hardly say that is
an adversary proceeding, Mr. Saylor.
H e is there to help the veteran. If the veteran does not have the
kind of evidence that he needs, he tells him the kind of evidence he has
2006 JUDICIAL REVIEW OF VETERANS' CLAIMS

to get to make out a case. If necessary, we go out and help him get
that evidence. To that extent, I think you could call us freely the-
claimant's attorney.
Mr. SAYLOR. I nave talked to a good deal of service officers who rep-
resent the claimants before your Board and I am sure this would come
as a startling revelation to them, that you feel that you are in the posi-
tion of being the claimant's attorney.
I can only tell you, Mr. Brickfield, if that is the lot of people
are going out and getting new attorneys.
Mr. BRICKFIELD. A S you know, Mr. Saylor, we have contact officers
and a large p a r t of their responsibility is in this particular area. I
might say, 1 was here all last Aveek and I listened to the two largest
veterans' organizations and the people that deal with representing
claimants, and to my mind they had only the highest praise.
Mr. SAYLOR. I did not hear a one of them say that they ever antici-
pated that the Veterans' Administration ever stood in a position of
being attorney for a claimant.
Mr. BRICKFIELD. I am using "claimant's attorney" as a figure of
speech. My point is that we are there to help veterans out.
Mr. SAYLOR. I can also tell you, Mr. Brickfield, let us turn to the
next page on your statement. I do not think you of the Veterans'
Administration need worry whether or not a court, if it is established,
would have to be equipped with a medical staff to analyze and inter-
pret the medical findings. I think that the judges of the various courts
in this country, when they have a case which requires it, have always
been able to get any evidence that they have needed or any support
they needed from the medical profession.
So the worry t h a t your Administration has with regard to this, I
think, is completely beside the point.
Mr. BRICKFIELD. Well, I think you must look at this, Mr. Saylor,
in the light of the bill that is before us. What does it provide ? I
admit t h a t in large measure the language is silent. However, here is
a commissioner and he gets a file from the Board of Veterans' Appeals.
H e has in it nothing but raw evidence, or raw evidence in large part,
like a medical statement or an X-ray. Who is going to interpret this
X-ray. Certainly not the commissioner.
Either the court will need medical experts or they will have to put
a doctor on the stand, in which event, since it is an adversary proceed-
ing, the Veterans' Administration may well want to put its doctor on
the stand.
B u t the point is, you do need this medical expert staff or testimony
since the Commissioner, himself, cannot supply it.
Mr. SAYLOR. I did not say you would not need it, but the worry about
the court not being able to get it does not impress me at all. Other
courts have been able to get it and certaintly this court, if we establish
it, will get it.
The next question I would like a comment on is that you are worry-
ing about the number of lawyers who would be willing to take up these
cases. I might say to you that as a member of the profession, I have
no doubt that if this court is established, we will have no trouble at
all in finding attorneys who are willing to take these cases.
W e have never had a lack of lawyers willing to take cases before and
I am sure that this court will be no exception.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2007

Mr. BRICKFIELD. Mr. Saylor, on that point, as I understand the bill,

the claimant is going to pay his attorney for the attorney's services
and as I think the A M V E T S testified—"this is the way it should be,
because if a claimant feels he has a meritorious case, let him risk his
own capital." I think I am quoting A M V E T S correctly.
If this is so, and we are dealing with literally thousands of cases
that concern themselves with $30 and $50 a month, I think it will put
a great hardship on a great number of claimants who want to go to
court, and in large measure, you will have only those people who can
afford to go into court, and I do not know if that is simple justice.
Mr. SAYLOR. Of course, he can not get into any court now, so the
fact that you are now concerned about the few that get in does not
impress me. If one gets there and he has a just claim, it is justice in
my opinion.
Mr. BRICKFIELD. I t is justice and it is justified if the court does
not set up a rigid rule which will be controlling on the other cases,
maybe in the order of 100 cases, which rules against something we
allow now but because of the court's decision we will disallow.
Mr. SAYLOR. Oh, now we are finding out that what you are really
telling this committee is that you are afraid of the court, because if
the court overrules you in any one case, you are then going to go back
and review a whole lot of cases that have already been allowed and
therefore will disallow cases that are already receiving veterans'
pensions.
Mr. BRICKFIELD. I am not saying that at all, Mr. Saylor, but the
court decision will be the rule for future claims. Future claims
will
Mr. SAYLOR. That is not what you said, Mr. Brickfield.
Mr. BRICKFIELD. If I did not; I intended to say it. I did not mean
that we would go back and open up these cases retroactively.
Mr. SAYLOR. On page 4 of your statement, I am very, very much
interested, because back in 1960, when we started these hearings, we
were told there was absolutely nothing wrong with the procedures of
the Veterans Administration, that they were doing a marvelous job,
that every veteran was getting all of the benefits that Congress in-
tended to give him, and lo and behold, we find that you now take about
six or seven pages to tell this committee of the changes that have
come about as a result of the hearings that we held in 1960.
Now, I can just tell you this, that in my opinion, if we had all the
benefit of these next six or seven pages as a result of that one hearing,
I do not know how much benefit we will have, Mr. Chairman, if we
set up this court. We will have a real about-face. This is startling.
Mr. BRICKFIELD. Mr. Saylor, I was not here in 1960, but it is hard
for me to believe, when you say we came here at that time and said
there was absolutely nothing wrong.
I think the position of the Veterans' Administration has always been
that we seek to improve. As I said in my statement today, we are
far from perfect.
Mr. Chairman, Mr. Stancil would like to make an observation.
Mr. STANCIL. Mr. Saylor, as of course you know, I was here last
year. I do not recall ever, and this includes the present time, claiming
that the Board of Veterans' Appeals and its procedures are perfect.
I am not sure we can achieve perfection. But I have emphasized sev-
2008 JUDICIAL REVIEW OF VETERANS' CLAIMS

eral times that no one on the Board of Veterans' Appeals thinks this
excuses us from trying to be as nearly perfect as we can. Certainly,
improvement in the procedures has been our goal. Most of the
changes Mr. Brickfield has discussed here this morning, as I recall,
were discussed and made of record in the hearings last year, except
the one about Public Law 87-97, findings of fact and conclusions of
law, which was introduced as an outgrowth of those hearings.
Mr. SATLOR. I have asked for some statistics to be prepared for me
and I find that in fiscal 1961 the U.S. district courts had 50,490 cases,
civil cases presented to them. There were no judgments or dismissals
of the cases in 26,766; the plaintiff won in 17,000 of them; the de-
fendant prevailed in 6,600 of them; and both won partially in about
150 cases.
Now, in the circuit court of appeals, in fiscal year 1961 the total
appeals, both civil and criminal, 2,806. Of that number, they affirmed
2,023; they reversed 692 cases and otherwise disposed of 91.
Now, in calendar 1961, the court of appeals in the District of Colum-
bia filed 322 opinions, had 60 dissents.
The first circuit in Boston had 93 opinions and 1 dissent.
I could not get the report for the second circuit in New York City.
But the third circuit in Philadelphia had 191 opinions and 20 dissents.
The fourth circuit in Richmond had 156 decisions and 9 dissents;
the fifth circuit in New Orleans had 452 opinions and 53 dissents.
The sixth circuit in Cincinnati had 157 opinions and 4 dissents; the
seventh circuit in Chicago had 222 opinions and 11 dissents; in the
eighth circuit in St. Louis, they had 155 cases and 1 dissent.
The 9th circuit in San Francisco had 328 cases and 9 dissents; the
10th circuit in Denver had 84 opinions in 84 cases and they had 8
dissents.
I n the 1960 term of the Supreme Court of the United States, they
handed down 129 decisions. Now, they affirmed the lower courts in
46 of those cases; they reversed them in 63 cases; they vacated or dis-
missed 15 of the cases; they affirmed and reversed 5 of them, and they
filed 111 dissents.
Now, I just point this out to you as some evidence of the fact that
in any court or administrative body that handles the number of cases
where there is bound to be a difference of opinion, the number of dis-
sents, in my opinion, is material.
I am glad to see that we have increased by a small portion the num-
ber of dissents; in fact, we have more than doubled them in the last
year, almost tripled them. And in the first 7 months of this year, you
tell us that you have had 27. This indicates that, at least as far as I am
concerned, maybe some of the members of the Board down there are
realizing that there is a difference of opinion and feeling that there
might be a little freedom and maybe rights of veterans that they
should have.
Now, I will agree with you that your purpose, the intention of the
Board of Veterans' Appeals and this committee and any court that
we establish is not for the purpose of making sure that unworthy cases
are granted to any veteran.
Mr. BRICKFIELD. That is right.
Mr. SATLOR. But just as there is a difference of opinion, I as a mem-
ber of this committee and as a Member of this Congress feel t h a t a
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2009

veteran is entitled to his day in court and to have some chance to look
over the shoulder of the Board that now says he has no right.
Mr. BRICKFIELD. Mr. Saylor, of course, you gave myriad statistics,
and truthfully, you lost me pretty much at the beginning of them.
B u t I think I have answers to this problem generally. They may not
satisfy you, but I would like to give them.
I would like to start out with the last first.
You are talking about a "day in court," and last evening, I clipped
this newspaper editorial from the Washington Star of February 28
and it reads, "Red Man's Day in Court." I t deals with the Indian
Claims Commission and says that the Indians are not having their
"day in court" because they cannot afford attorneys and they cannot
afford expert witnesses to appraise land values.
But the important thing is that the "day in court" was not a court
of law in the literal sense as we know it; it was this Indian Claims
Commission that they were talking about, and the Indian Claims
Commission is an independent agency just as the Veterans' Admin-
istration is an independent agency.
When you talk about a day in court, you are talking about due proc-
ess, you are talking about a claimant who is entitled to a fair hearing
before an agency officer who has the authority to make a decision.
If you are a defendant and you are talking about a day in court,
you are talking about giving a man a hearing with prior notice.
To get to the statistics here, the 50,000 cases that you say were in the
district court, I cannot address myself to, because I know nothing
about it.
You gave another statistic about the U.S. circuit court of appeals
which I think would be in point here. Did you say there were 2,800
cases?
Mr. SAYLOR. 2,806 cases. They affirmed the decisions in 2,023 cases
and reversed them in 692 of them—25 percent of them.
Mr. BRICKFIELD. Of course, I cannot dispute the figure, but was the
2,800 cases, Mr. Saylor, the total number of cases before the court, or
is it the total number of cases that the court had hearings on? Be-
cause my understanding is that the court rate of reversal is only 16
percent, year in and year out, and I have been advised that the Federal
circuit courts in fact entertained 4,000 cases last year.
But more importantly, if you are talking about percentages, even
in the district court, I would say the Veterans' Administration proce-
dure of allowing claims, when you remember that we are dealing
with 1,500,000 appealable issues per year and more than 94 percent
of them are disposed of without appeal, our statistics are far more
favorable than the district court.
COUNSEL. These figures came from Mr. Beattie of the U.S. court's
office. As far as I know, they are correct and that was the figure given
ine.
Mr. BRICKFIELD. Mr. Chairman, I understand we have statistics,
too, from Mr. Beattie of the administrative office of the U.S. courts
and we are advised that the circuit courts of appeals of the United
States terminated 4,059 cases instead of 2,806.
Mr. SAYLOR. I n what year?
Mr. BRICKFIELD. F o r fiscal 1961, and that they reversed in 692 cases,
which I think is the figure you gave. I t is then, I think, 16 percent.
S00S2—62 19
•2010 ' JUDICIAL i'REVIEW OF VETEHANS' CLAIMS

Mr. SAYLOR. Mr. Chairman, I will ask the committee staff to get in
touch with Mr. Beattie, have him verify the figures, and when he gets
'the figures, place them in the record at this point. .
.'•. Mr. KORNEGAY. Without objection, it is so ordered.
- . (Subsequent investigation revealed the original figures provided by
Mr. Saylor to be correct.)
Mr. SAYLOR. Now, Mr. Brickfield, since you are referring to pieces
'. that appear in the newspaper, I have one that appeared in the news-
'• papers the other day, not dealing with the Indian Claims Commission.
'... I t deals with the VA. I was astounded, because when I picked it
• iip, and this appeared in the Washington Daily News, February 23,
not quite as. late as the article you had, but 5 days previously:
Trying to reach Supreme Court. Judge rules VA should pay illegitimate
"orphans. '
I t goes on to state that the. judge gave summary judgment in eight
cases, on the basis of whether or not illegitimate orphans could collect
on World W a r I I service life insurance.
I t goes on to state that it is hoped that you folks can get into the
Supreme Court and I think in my talking with somebody who was in
the court at the time, one of the questions that was asked by the judge
was as to whether or not you had made any investigation of these
• cases when you were making some payments heretofore and you said
that you had and that your arguments that there might be somebody
else rise up and claim this money did not seem to have much effect
upon District Judge Edward M. Curran in granting summary
judgments. . . .
Mr. BRICKFIELD. Here again, Mr. Saylor, we are really talking about
one point of law. This was the Trainas case and the law says that
when a veteran dies, certain people can receive gratuitous insurance.
First, comes his widow, then follows his child, including his adopted
child. We took the position that "child" did not mean illegitimate
child. The court, in the Trainas case, decided that it did include il-
legitimate children.
Then I understand Mr. Nussbaum, an attorney who appeared here,
took eight cases on exactly the very same question over to the lower
district court on summary judgment and they were all decided at the
same time on the one question; namely, whether or not the statute
which reads "child" includes illegitimate.
I might add further that the reason why we opposed a summary
judgment was the fact that when you do have an illegitimate child,
you are dealing with a class of children and the question becomes,
how many illegitimate children could there be.
Mr. SAYLOR. Now, let me ask you this question: This probably oc-
curred before you were the counsel for the Veterans' Administration^
but did the Veterans' Administration take an appeal from the Trainas
case?
Mr. BRICKFIELD. That has not been decided as yet, Mr. Saylor. I
might say that in this case, the position of the Veterans' Administra-
tion was sustained in the district court, and, of course, in the circuit
court of appeals, it was reversed. So I do not think a final decision
has been made as to whether or not an appeal should be taken.
However, I would say that there is a difference of opinion between
the lower court and the circuit court of appeals on this.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2011

' Mr. SAYLOR. YOU mean here is a case where even one court reversed
another court.
Mr. BRICKFIELD. T h a t is right.
Mr. SAYLOR. This, of course, is rather unusual, that you are willing
to take your cases into court, but you do not want to give the veteran
a chance to get in there. This is rather an anomalous situation. I
will not ask you to comment on that.
Now, other matters come to my attention, since we have you here
before us, dealing with the Veterans' Administration. I t was always
my understanding that when a man received an honorable discharge
from the service, that was the last word. Now, I am concerned about
the reluctance of the Veterans' Administration to recognize an hon-
orable discharge, because if you do not recognize an honorable dis-
charge as conclusive, then I am satisfied that you need not recognize
a dishonorable discharge, you need not recognize anything, and that
..no veteran, regardless of what kind of a discharge or separation from
the service he has, is safe.
Now, I am going to give you the specific case, because it is one
in which the chairman of the full committee and myself have been
very much interested. The case number is XC-12270428 and it was
submitted by the chairman of the full committee, Mr. Teague, to the
Chief Benefits Director of the Veterans' Administration for adminis-
trative review, J a n u a r y of 1961.
The claim is that of a Avidow for a pension in behalf of herself and
her three minor children, based upon the service of her deceased hus-
band, and was filed in September of 1955.
The veteran received an honorable discharge on November 9, 1955.
Chief Benefits Director on Administrative Review affirmed the re-
gional office's denial of a pension claim on J a n u a r y 30, 1961, on the
grounds that the service of the veteran was not satisfactory.
I n April of 1961, the claim was resubmitted to the Chief Benefits
Director on Administrative Review, together with a copy of a letter
from the Adjutant General of the Army, dated March 27, 1961, in
which the Adjutant General states that the only discharge ever issued
to this veteran was an honorable discharge.
The Veterans' Administration based its denial of the claim on the
statement of the Army that the veteran's service was not satisfactory.
This statement of the Army is based upon a document contained in the
veteran's file entitled "Record of Determination."
This document is dated October 28, 1947, and relates that the Army
had determined that the issuance of the honorable discharge was in
error and that a blue discharge should have been granted. The letter
from the Adjutant General, which I have previously referred to in-
dicates that the veteran was never notified of the action that the Army
proposed to take, given no opportunity for a hearing, was not ever
notified after the fact of the action taken to change the character
of his discharge.
The letter further indicates that the first notice given of the action
taken in 1947 was by a letter to the surviving widow of the deceased
veteran, dated November 21,1955.
The resubmission on administrative review was again denied by the
Chief Benefits Director on May 12,1961.
2012 JUDICIAL REVIEW OF VETERANS' CLAIMS

On July 26, 1961, the claim was presented to the Board of Veterans'
Appeals for formal hearing. As yet, no decision has been rendered.
But I want to repeat to you that I am concerned about the inclina-
tion of the Veterans' Administration to go behind the honorable dis-
charge, even though the position of the Veterans' Administration is
based upon the action of the Army as I have described it.
I t seems clear to me that action of the Army not only constitutes a
-violation of due process; in fact, there was not any process of any
Trind. I am satisfied that this is another evidence of the fact that
there should be some manner in which a veteran could have a judicial
review in the decisions of an administrator, because unless the Board
•of Veterans' Appeals reverses the position that has already been taken,
it will be absolutely impossible for a man with an honorable discharge
to have his widow and surviving children receive the benefits that
Congress has said they are entitled to.
Mr. BRICKFIELD. Mr. Saylor, I would like Mr. Stancil to respond
to that question. But before he does, I would like to observe that I
believe that case is pending before the Board of Veterans' Appeals at
the present time.
Secondly, the question which you seem to have reached the conclu-
sion on is whether or not the veteran did receive an honorable
discharge.
Mr. SATLOR. There is no question in my mind; he has one. The
Army says they only gave him one.
Mr. BRICKFIELD. My understanding is that while he was issued an
honorable discharge, it was issued in error and the Army maintains
it can correct its own mistakes.
Mr. STANCIL. The problem in this case, and this is on the basis of
memory of one case out of a great many thousand, subject to confirma-
tion by looking at the file, is not one of the Board of Veterans Ap-
peals looking at the honorable discharge the man has with a jaundiced
eye, but is the conflict created in the record by an official certification
from the Department of Defense that the discharge had been changed
to a blue discharge. The Board of Veterans Appeals questions the
validity of this, because our research into the matter disclosed deter-
minations in the Department of Defense and, as I recall, the General
Accounting Office, as well as our own concept of justice, that when a
man is handed a discharge, you cannot go back and play fast and loose
with it under the circumstances you have described in this case.
Efforts are currently underway between the Board of Veterans
Appeals and the General Counsel, and the General Counsel's office
has brought in the Judge Advocate General of the Army, I believe, to
resolve the question, not only as to the disposition of this individual
case, but the disposition of the general question as well.
I t has not been determined as yet.
Mr. SAYLOR. Here is a case that I understand you have not handed
down your decision on, but you will find yourself placed in this al-
most untenable position, the Board of Veterans Appeals, that has
been subject to administrative review by the Administrator himself,
who is your boss
Mr. STANCIL. I do not believe it was reviewed by the Administrator.
I believe the review has been by the Department of Veterans Benefits.
 JUDICIAL REVIEW OP VETERANS' CLAIMS 2013

I am sure Mr. Farmer will advise you we would have no hesitancy in

reversing this.
Mr. BRICKFIELD. T h a t is right. I believe this is a good example of
bending over backwards to do a good job. W e have been considering
it, reconsidering it, consulting with the Department of the Army, try-
ing to develop a full and complete case in this instance.
Mr. S T A N C H . A S a matter of fact, what happened in this case, the
veteran, as I recall, was overseas and certain formal board proceed-
ings were taken and the determination was made that he would be
discharged with a blue discharge.
This was approved by the commanding general in the area. H e was
shipped back to the States and somehow or other the records became
confused and he was handed the honorable discharge. W e are aware
of determinations in the past that, in situations like this, if a man is
given an honorable discharge, even through error, it is extremely un-
likely that this can be changed unless you can show it was procured
by fraud.
This was, as I recall it, a determination by the General Accounting
Office in some retirement case.
We think there is a very great question in this case and I want to
assure you we are making no attempt to overturn an honorable dis-
charge.
Mr. BRICKFIELD. This soldier, Mr. Chairman, was in the Middle
East. H e had bad conduct and was sent home to the States to be
discharged from one of our discharge centers. He arrived here be-
fore his papers arrived. Apparently, the officer in charge of the
separation center was not aware of this, so he issued the soldier an
honorable discharge and the man was discharged from the Army with
an honorable discharge certificate.
Thereafter, his papers from the Middle East caught up with his
records here in the United States and it became clear he should have
been issued a blue discharge.
JNTOW, the question is, can the Army correct his records.
Mr. KORNEGAY. Would the gentleman yield ?
Mr. SATLOR. Yes.
Mr. KORNEGAT. W h a t efforts were made thereafter, Mr. Brickfield,
to correct this situation during the life of this veteran, if you know ?
Mr. BRICKFIELD. I do not know. I am not sure of dates, but I
think Mr. Say lor says his widow applied in 1947; is that right?
Mr. SATLOR. 1955. This occurred in 1947. H e died in 1955. Since
that time for 7 years, she has been trying to get some benefits out
of the Veterans' Administration.
Mr. BRICKFIELD. The Army's position, I understand, is that the
Army made an administrative mistake: that his discharge should
have been other than honorable and the Army's position is that it
can correct its errors.
Mr. SAYLOR. The important thing is this case gets down to the
point that this case is a shining example of one of the reasons we
should have a court to look into these matters. We have a situation
now where anyone with an honorable discharge is not too sure that
it is good.
F o r the last 7 years, anybody with an honorable discharge must
have been sitting on a keg of powder.
2014 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. BRICKFIELD. I believe the Army in fact issued an order chang-

ing the discharge. If there is a remedy here, it is for the widow
to correct the Army records.
Mr. SAYLOR. Mr. Chairman, as near as I know, there was abso-
lutely no notice of any sort, make, or description, ever served on
this man. There had been no action taken, as near as we can deter-
mine. The chairman and myself, working on this case, have found
absolutely no evidence that the Army ever took any action until after
the widow filed her claim.
Mr. STANCIL. I think you are right, sir, in your facts on that.
Mr. SAYLOR. Once again, Mr. Stancil, I am relying on my memory.
Mr. STANCIL. So am I, but I think your facts are correct in what
the Department of the Army did. I believe it was the claim filed by
the widow t h a t raised the question. We may not be moving as fast
as you would like us to move, but we are trying our best to resolve it.
Mr. SAYLOR. I want to say, Mr. Stancil, that while you and I dis-
agree on the fact that there should be someone looking over your
shoulder, I still agree that you are doing an outstanding job down
there.
Personally, I can see, if I were in your position, I would welcome a
court, not because of the chance that they would overrule you, but hav-
ing done the best you can, the people who work for you, doing the
best job that they know how, would have the further assurance of
having someone to look over their shoulder and say, yes, 50, 60, 70
percent of the cases they agreed with you. This is a matter of opinion.
Sometimes, in dealing with all the cases that your Board is required
to, I think the very number of cases that you handle is one of the rea-
sons that we should have a court.
Not that you are not trying to do the best job that you possibly can,
and not that the men who are working for you are not trying to do
the best job they possibly can, but they are only human. W i t h all of
the cases that they have, they are sometimes liable to slip. I t is a
matter of judgment, and you would be in the position of saying, "Well,
we did the best we could; the courts sustained us, as they have done in
most other courts." They sustain them always in the majority of
cases. B u t those other cases would not be a reflection on you. I t is a
case of somebody else looking at the same facts and coming to a dif-
ferent conclusion. So I do not think it is any reflection upon you.
I t probably would be, just as the other boards have found it, a mat-
ter of keeping them on their toes.
I t would probably be a good thing for you and the members of the
Board who work with you.
Mr. STANCIL. Mr. Saylor, I appreciate the remarks you made. I
respect your views. I want to make it a matter of very clear record
that any opinions with regard to a court are in no way based on any
sense of personal prestige or fear of being reversed or prerogatives
or anything of this nature.
Answers we give you in helping the committee consider the legisla-
tion before it are based on just as objective thinking as we are humanly
capable of. We attempt to advise, certainly not to dictate or to avoid
anyone looking over our shoulder.
As a matter of fact, there are about six people looking over each
shoulder, as you know, every day. B u t the decision, of course, as to
 JUDICIAL REVIEW OP VETERANS' CLAIMS 2015

what kind of basic system you want for the adjudication of veterans'
claims is a matter for this committee. Our function is simply to come
before you and answer your questions, and we must answer them hon-
estly and with integrity and all possible objectivity.
Mr. SATLOR. Thank you, Mr. Stancil.
I might say to you, Mr. Brickfield, that I think that the Veterans'
Administration is indeed fortunate in having you as their General
Counsel. You know that you and I have worked together when you
were up here on the Hill working for the Judiciary Committee, and I
have great respect for your legal ability.
Mr. BRICKFIELD. Mr. Saylor, thank you very much, but I must
adhere to the view that we at the V A do not believe in change for
change's sake. W e think there should be change only if it will bring
better results.
I n this instance, we do not feel that it will bring better results.
W e feel that a court will complicate matters: it would narrow the
area of claims and the bill would be substituting one group's opinion
for another group's opinion. I t is not necessarily true that the court
would be right; it would be that the court would have the last word.
Mr. SATLOR. By the way, for your information, I have suggested
to the Administrator of Veterans' Affairs that he send both you and
Mr. Stancil, and anybody else that he wants to, to England and sub-
ject, you and anyone else that he sends over there to a chance of seeing
just how judicial review works. As you know, it exists in England.
Those of us who have seen it are impressed with it. We feel that that
court has done a great deal for the veterans of the United Kingdom,
and I am sure that if the Administrator will take my suggestion, you
will enjoy your stay in England, your education will be enlarged,
and I am sure that your viewpoint will be changed.
Mr. BRICKFIELD. Facetiously, I would only ask one further request,
that the chairman of the subcommittee hold u p final decision on this
legislation until such time as we can go over, study the matter, and
report back to the chairman our experiences abroad.
Mr. SAYLOR. Well, I appreciate that request, but in view of the fact
that you folks go on forever, we do not; we must act.
Mr. KORNEGAY. W e are here only for a short while.
SUBCOMMITTEE COUNSEL. Mr. Chairman, in order not to have too
much break in the continuity of the record in regard to the case that
Mr. Saylor raised, may I ask a question a t this time ?
Mr. KORNEGAY. Yes, Mr. Downer.
SUBCOMMITTEE COUNSEL. Mr. Brickfield, I believe you stated that
the Army had a right to correct an error; is that correct ?
Mr. BRICKFIELD. This is the Army's position; yes, sir.
SUBCOMMITTEE COUNSEL. Who would determine what constitutes an
error?
Mr. BRICKFIELD. I n the first instance, I suppose the Department of
the Army.
SUBCOMMITTEE COUNSEL. Then does it not necessarily follow that
the Army could change any action it had taken by saying, itself, that
the previous action was erroneous?
Mr. BRICKFIELD. T h a t is true.
SUBCOMMITTEE COUNSEL. T h a t would mean their authority would
be unlimited; would it not?
2016 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. BRICKFIELD. N o ; I think they must act within reason. Other-

wise, if you are talking about unlimited authority, then you may be
running into an area, in some instances, of an arbitrary decision.
SUBCOMMITTEE COUNSEL. Who is to say it is within reason ?
Mr. BRICKFIELD. Well, the people t h a t decide the question, in the
first instance.
SUBCOMMITTEE COUNSEL. The people in the Army ?
Mr. BRICKFIELD. T h a t is right.
SUBCOMMITTEE COUNSEL. Therefore, their authority would be un-
limited, would it not ?
Mr. BRICKFIELD. I t is not unlimited. They have the authority to
make the decision as to whether or not an error has been made in this
particular case.
SUBCOMMITTEE COUNSEL. And they make the decision that a previ-
ous action was erroneous?
Mr. BRICKFIELD. I might add, Mr. Downer, that the Army's decision
is not necessarily controlling on the VA in determining eligibility for
veterans' benefits. We would give great weight to their decision, but
we would make out own decision independently. We are not bound.
Mr. STANCIL. I n the 15 years or so I have been on the Board of
Veterans' Appeals, this is the first time it has arisen, within my ex-
perience and knowledge. I am by no means in the position of saying
t h a t whatever the Judge Advocate General of the Army says is going
to control the decision in this case.
SUBCOMMITTEE COUNSEL. I S it not rather basic, though, that a deci-
sion made which affects the rights of another person without due
process is utterly void?
Mr. BRICKFIELD. I think that is generally a correct statement.
SUBCOMMITTEE COUNSEL. Now, another thing, Mr. Brickfield: You
mentioned t h a t this discharge was issued because of the fact that
records had not caught up with the veteran and had the records of his
service been available, he would not have been issued an honorable
discharge. I n that connection, I wish to call your attention to the
fact t h a t I have before me a copy of the honorable discharge issued to
the veteran in this case, which states on it: "324 days lost under article
4.107."
Does that not establish that the records of the veteran's service were
available at the time and place when he was discharged?
Mr. BRICKFIELD. Yes. I think that certain of his records were
available, maybe his service record, if that's the form, but not the
records before the board of hearing officers which hearings took place
over in the Middle East.
I do not believe that they had caught up with him at the time he
arrived in the United States and was discharged.
I could be wrong on these facts, Mr. Downer. I do not have a
personal knowledge of them.
SUBCOMMITTEE COUNSEL. That is all, Mr. Chairman.
Mr. KORNEGAT. Mr. Addabbo?
Mr. ADDABBO. First let me compliment Mr. Brickfield and other
members of the V A staff who have appeared before us for their com-
prehensive statements.
I just want to ask simple questions.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2017

No. 1: Does the VA at the present time set the fees for the attorneys
who represent the veterans before it?
Mr. STAKCIL. A t present, the restriction of fees for attorneys prac-
ticing before the Veterans' Administration is set by law and the fee
is extremely nominal.
Mr. ADDABBO. Would those fees carry over into the judicial review?
Mr. STANCIL. I think not. I think there is a provision in many of
these bills that the court would set a reasonable fee.
Mr. BRICKFIELD. I t is a $10 fee before the Board of Veterans' Ap-
peals and under the bill the court itself would develop its own rules of
procedure and I imagine that among other things, it would set
attorneys' fees.
Mr. STANCIL. Under the present law governing the practice of at-
torneys before the Veterans' Administration, the maximum fee is $10
in the case of a compensation claim, or 10 percent in the insurance
cases.
A number of them do come in, usually on the basis of personal
friendship or some family association or something of that nature.
We get very few attorneys working for the fee, except in insurance
cases, where an attorney can get 10 percent of an amount up to $10,000,
if he goes to court, but not before the Board of Veterans' Appeals or
the VA. But if he goes to court
Mr. ADDABBO. I S there any set fee for an appearance before the
Board of Veterans' Appeals?
Mr. STANCIL. The statutory maximum of $10.
Mr. ADDABBO. In your statement, Mr. Brickfield, on page 4, you
say that the Board is completely divorced from policymaking.
Mr. BRICKFIELD. That is right, Mr. Addabbo, and I think that took
place in June, J u n e 14, 1960.
Mr. ADDABBO. If we set up the court for judicial review, this would
not be policymaking, but it would more or less set precedent or criteria
for similar cases. Would that not possibly cut down the caseload of
the Veterans' Administration, whether it be on the lower boards or
Mr. BRICKFIELD. Yes. Mr. Berger, I think, testified. H e said
within a reasonable time you would have a cluster of cases, I think
that was the term he used, and these would set the standards and
guides for our use in connection with the entertamment of future
claims.
This is where the V A has a reservation, because we feel that any
time you are writing more decisions and more guides and more regu-
lations, there comes with them a restriction on the ability of the
Veterans' Administration to award claims. T h a t is why I go back
basically to the point where I think in the future we could be dis-
allowing claims which, under our present rules, Ave do allow.
Could I make one additional statement, Mr. Addabbo ? I n going
over this bill, I was trying to get the feel of it and, actually, what
this bill does is set up an independent board.
The bill calls it a court. But the only thing about the tribunal,
and we are dealing here in labels, is that the members are called
judges and they are paid judges' salaries and the commissioners are
similar to the commissioners of the Court of Claims. Yet the author
of the bill does not want to write into this bill any of the commonly
accepted rules of evidence. H e wants to keep things flexible. H e
2018 JUDICIAL REVIEW OP VETERANS' CLAIMS

wants the commissioners to be able to take all kinds of evidence, which

may be good or may not be good.
I think then what we are really talking about here is a board, an
independent board, not really a court. A court is something in which
you have strict rules of practice and the whole experience of our
Government, under any of these courts—the Court of Customs and
Patent Appeals, the Court of Military Appeals, the Court of Claims—
is to develop voluminous rules of procedure and rules of evidence.
T h e Court of Claims rules of evidence and procedure are set out in
'last year's hearings and they run pretty nearly 200 pages, if not more.
B u t I think if we can get down to the marrow here, we must ask,
what have we got in this bill ? Is it a court concept or is it in fact an
independent board concept? T h a t is the point.
Mr. ADDABBO. I would say an independent board is more or less
on the basis of a supreme court board, which would be the final and
ultimate court of actual jurisdiction, given the title of court, because
you want to make it appear that this is the last phase a veteran can
go through. As Mr. Saylor has pointed out, we want to try to give the
veteran every possibility, if he feels aggrieved, to go beyond the
Veterans' Administration. B u t I believe Mr. Berger of the American
•Bar Association set forth—he has made quite a study of the Adminis-
tration and the Board, and he says he does not believe and the Ameri-
'can B a r Association does not believe that the Administrator of the
Veterans' Administration should be the judge of his own powers.
Mr. BRICKFIELD. Well, Mr. Berger said he is for this bill in prin-
ciple, and then he set out a series of reservations which I thought had
serious effect on the bill.
F o r example, he said, and I could get the page for you here, that
you cannot appeal on the record, which is the claims folder of our
Board of Appeals. I f I remember rightly, I think Mr. Saylor
agreed with him that you could not appeal on the file which we now
have before the Board of Veterans' Appeals.
I n addition to that, he asked what must you do ? You must grant
a trial de novo. I n other words, you start from the beginning again
and you create a new record. And he said this is the only fair way
to do it.
H e said you thereby get cross-examination and you would be sur-
prised at the things cross-examination reveals.
Then when you are through with the Commissioner, who would con-
duct this trial de novo, Mr. Berger said there should be a further
appeal to the court of appeals. W h a t would be the test at this
higher level ? The test would be whether or not there was substantial
evidence to support the Commissioner's findings. So that what Mr.
Berger is talking about is really two appellate procedures.
I might say now in the Veterans' Administration, we have two or
three appellate proceedings. We have adjudicators, rating boards,
you can go back to the adjudicators, rating boards, you can go back
to the adjudicator; and you can then go to the Board of Veterans'
Appeals.
Now, according to Mr. Berger, and he is an expert in administra-
tive law, you should go first to a commissioner, have a trial de novo,
and after that, have a limited review on substantial evidence at the
court of appeals level.
 JUDICIAL REVIEW OP.VETERANS' CLAIMS 2019

Mr. ADDABBO. That would be the work of the Commissioner?

Mr. BRICKFIELD. I think the Commissioner would be the trial court;
t h a t is right.
Mr. ADDABBO. And they would make their findings; and if you wish
to appeal their findings, you go to the Board of Judicial Review ?
Mr. BRICKFIELD. Right. And I might say this is the classic way
for administrative law and administrative review, namely, that the
agency makes the findings and then the courts come in in a limited
sense to see whether or not the findings are supported by substantial
evidence. The court does not substitute its view.
Mr. ADDABBO. No further questions.
Mr. KOR2STEGAY. Mr. Brickfield, it is approaching the hour of 12,
so we probably cannot finish today. Although I do not have in mind
any lengthy period of questioning, I do raise the question of whether
or not you could come back Monday because I think in a short time we
could terminate your examination.
Let me make this request of you, because over a period of days be-
tween now and Monday, there may be some statistics that you could
get u p for us if you do not otherwise have them.
I would be interested in finding out how many cases are appealed
from the regional office to the Board of Veterans' Appeals in the fol-
lowing categories:
First, on the question, the sole question of whether or not an alleged
disability is service-connected;
Second, how many appeals come up on the question of rating or
the percentage of disability. I n other words, in that second category,
it has been determined that it is a service-connected disability, but the
veteran does not feel that he has been rated, his disability has been
rated as high as it should be.
Third, it may be well also to have, if you have them and can pro-
vide them to us, any other appeal or appeals in other categories, such
as non-service-connected disabilities, and in any other area that can
be categorized in the area of veterans' claims.
Mr. STANCIL. Mr. Chairman, we will be very glad to supply those
statistics specifically, but very hurriedly, I can give you an idea now.
Bear in mind, some cases may present one, two, three or more issues.
But in fiscal 1961 of the cases decided by the Board, the issue of
service connection was involved in approximately 36 percent of the
cases.
The issue of an increased rating was involved in 33 percent of the
cases.
Pension cases, that is, basic entitlement to pension and entitlement
to the increased award for aid and attendance was involved in 13
percent of the cases.
Then there was a 5 percent miscellaneous category of line of duty,
willful misconduct and other assorted issues. Death cases accounted
for 8 percent of our appellate load and vocational rehabilitation edu-
cation cases are now down to 4 percent of our cases. They were at
one time as high as 23 percent.
Insurance cases, lumping together World W a r I , national service
life, gratuitous insurance, indemnity, and all phases of insurance,
were 1 percent of our load, in 1961, fiscal 1961.
But we will bring with us the exact figure.
2020 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. KORNEGAY. Thank you very much for coming. We will look
forward to seeing you Monday morning.
COUNSEL. F o r the record ? on the figures on appeals, I talked to Mr.
Beattie of the Administrative Office of U.S. Courts after the inquiry
of Mr. Saylor. He said the figures Mr. Saylor read are correct and
they are the figures wliich will appear in the annual report of his
.agency.
Mr. KORNEGAY. The committee stands adjourned until Monday
:morning at 10 o'clock.
(Whereupon, at 11:50 a.m., the hearing adjourned, to resume Mon-
d a y , March 5,1962, at 10 a.m.)
 SUBCOMMITTEE ON JUDICIAL REVIEW

M O N D A Y , M A R C H 5, 1 9 6 2

HOUSE OF REPRESENTATIVES,
COMMITTEE ON VETERANS' AFFAIRS,
Washington, D.G.
The subcommittee met at 10 a.m., pursuant to recess, in room 356,
Old House Office Building, Hon. Horace E. Kornegay (chairman
of the subcommittee) presiding.
Mr. KORNEGAY. The special subcommittee will come to order, and I
would like at this time to recognize the Honorable Robert E. Quinn,
chief judge, U.S. Court of Military Appeals and ask Judge Quinn
if he so desires to come around and make any statement which he
cares to make in connection with the legislation which is under con-
sideration by the special subcommittee.
TESTIMONY OF ROBERT E. QUINN, CHIEF JUDGE OF THE U.S. COURT
OF MILITARY APPEALS, ACCOMPANIED BY ALFRED C. PROULX,
CLERK OF COURT
Judge Q U I N N . Mr. Chairman, I have no prepared statement to
make. I would be glad to answer any questions you might like to
propound.
Mr. KORNEGAT. First, Judge, let me tell you how delighted we are
to have you with us and how much we sincerely appreciate your taking
your time to come over and offer yourself as a witness in connection
with this matter, and we would like also for you to introduce the
gentleman with you in order that the record may show whom you
bring.
Judge Q U I N N . This is Mr. Alfred C. Proulx, Mr. Chairman. H e is
the clerk of our court.
Mr. KORNEGAT. We are glad to have you with us, Mr. Proulx.
Mr. PROULX. Thank you very much.
Mr. KORNEGAT. As you are aware, Judge, this special subcommittee
has under consideration several bills which would provide, if enacted,
for the establishment of a judicial review of decisions of the Veterans'
Administration relating to veterans affaire.
The bills are varied and have different aspects but principally they
call for the establishment of a court of judicial review consisting of
three to five members which are to sit here in Washington, as the
Supreme Court sits for the court of appeals and the bills, or most of
them, also authorize the appointment of commissioners anywhere
from a limited number to a maximum of 50, as I recall, for the pur-
pose of operating in the field, taking testimony and in effect serving
as trial courts.
2021
2022 JUDICIAL REVIEW OF VETERANS' CLAIMS

As I understand the procedure, it is somewhat like that now used

in the other fields of reviewing the proceedings of administrative
agencies on such as workmen's compensation, industrial commissions,
and agencies of that sort.
Now, how long, sir, have you been the chief judge of the U.S. Court
of Military Appeals?
J u d g e QTJINN. Approximately 11 years, Mr. Chairman.
Mr. KORNEGAY. And you are a member of the initial court, as I
understand it.
J u d g e QTTINN. Yes, sir.
Mr. KORNEGAY. And have you been chief judge during the entire
period ?
Judge Q U I N N . Yes; I have.
Mr. KORNEGAY. I was not in Congress at that time and I have
merely vague recollections of reading some of the controversies that
went on about the establishment of the military court back in those
days. My recollection, frankly speaking, is not clear as to the con-
troversy at this time I do recall that certain segments of the mili-
tary opposed the establishment of the Court of Military Appeals,
feeling, and I am quite sure conscientiously, that it would greatly
impair the military in carrying out their duties and impair discipline
within the military. For these reasons they felt it was both unwise
and unwarranted to create your court of appeals.
Would you care to make any statement or observation as to how
they may feel, the military may feel at this time about the work of
the court and what is the relationship now between the court and the
military and how it is working, and as to whether or not, for the most
part, you are satisfied with the operations of the court ?
J u d g e Q U I N N . Well, I am quite sure, Mr. Chairman, that most of
the high officers in the Military Establishment today are quite satis-
fied with the operation of the court. Undoubtedly there were in-
dividuals who felt, at the time of its inception and who still feel, that
it is fundamentally not a sound idea.
You see, for the first time in the history of our country, you have
a civilian judicial tribunal at the apex of the judicial Military
Establishment.
I n other words, we are more or less the supreme court of the mili-
tary. We act in the same way in the Military Establishment as the
Supreme Court of the United States acts in the civil field. There is
no appeal from our decisions. We are a court of last resort and there
are men high u p in the Military Establishment of today. I am quite
sure, who feel t h a t this is not compatible with military efficiency.
B u t by and large I would say that our high officers, in the Army,
Navy, Air Force, and Marine Corps feel that the court has been a
good thing, that it has worked satisfactorily, that it has not impaired
the efficient operation of the military operation in any way and General
Lemnitzer, who was the Chairman of the Joint Chiefs of Staff, who,
I suppose, is the highest military official in the land, said about 2 years
ago that the morale of the military forces is at the highest point it
has ever been in the history of our Nation and that the Uniform Code
has contributed to this situation.
 JUDICIAL' REVIEW OF VETERANS'' CLAIMS 2023

I n other words, I think the feeling generally, Mr. Chairman, is

that the court has done a good job, that it has not interfered in any
way with military efficiency.
There seems to be some question now as to whether or not it would
work satisfactorily in the time of war. About 2 or 3 weeks ago General
Harmon, who was formerly Judge Advocate General of the Air Force,'
testified before a Senate committese, whose chairman is a very dis-
tinguished Senator from your State, Senator Ervrn, and testified that
it wouldn't work in time of war.
Well, of course, General Harmon is entitled to his opinion. Con-
ceivably he could be right. Of course, it did work through the Korean
war without any difficulty whatsoever.
Of course, I think I could say without any question that it would
work under conditions of World W a r I I , without any difficulty.
If we had an atomic war, of course neither you nor I, nor anybody
else knows what the conditions would be. I t would be conceivable, I
suppose, in the event of atomic attack, and the suspension of the writ
of habeas corpus, and the civilian court, that we conceivably might
be the only court in existence at the time.
But, frankly, I see no reason why it wouldn't work in the event of
what we know as a war. We have powers to curtail appeals, and I
think the court is working satisfactorily, generally speaking. There
will always be individuals in the Military Establishment who do not
like civilian control.
I talked down at Annapolis a month or so ago and most of the
audience, of course, consisted of retired rear admirals and other naval
officers, and there were one or two there who indicated very vocifer-
ously they did not think the court was working satisfactorily. B u t I
would say that 95 percent of the men in the Military Establishment
who hold high office and know what it is all about would commend the
record of the court for the last 11 years.
Mr. KORNEGAY. Would you very briefly, Judge, describe the setup
of your court, the panels, the number of judges, how the appeals are
taken, what steps are taken from the time a member of the armed
services is court-martialed, all the way through the court?
Judge QTJINN. Yes, sir. The proceedings under the Uniform Code,
Mr. Chairman, are of course purely judicial. They are not administra-
tive in any way and there would be, of course, that difference between
our operation and the operation proposed in the bill.
F r o m the time that a man is arrested he is entitled to his constitu-
tional and legal rights the same as he would be in the civilian field.
He is not, of course, entitled to indictment by a grand jury because
that, of course, is specifically excluded by the sixth amendment itself.
H e does not have a right to a trial by petit jury in the same sense you
or I would have if we were arrested for a crime here in the District
of Columbia or North Carolina or Ehode Island. But in other ways
he has safeguards that are certainly as effective and perhaps more
effective than the right to indictment and trial by a petit jury. H e
has a right to a hearing before an article 32 officer. T h a t would be
an impartial officer and it would be to determine whether or not there
are grounds for the accusation and the charge.
Air. KORXEGAT. T h a t would be equivalent to a committing magis-
trate under our civilian procedure ?
2024 JUDICIAL REVIEW OF VETERANS' CLAIMS

J u d g e QTJINST. Yes. The same as a committing magistrate. Then

not only does the Government p u t in its evidence but the defendant
has a right to appear and upon request has a right to counsel and
has a right to cross-examine the witnesses for the Government and
has a right to present his side of the case. So that very often, of
course, the article 32 hearing results in the discharge of the specifica-
tion of the indictment.
If he is charged with the crime, he then goes to trial before a court-
martial and now that court-martial has a law officer, who is the
equivalent of a civilian judge.
We have, I think, over the course of the last 11 years, built up the
standing of the law officer. H e acts the same as a district court
judge. The court-martial really now is a jury. The law officer passes
upon all questions of law, upon the admission or exclusion of evidence,
upon motions to dismiss. That, however, is subject to the vote of the
court-martial itself. W e have recommended that the law be amended
in that respect, too, so the law officer would have the complete right
to dismiss for lack of evidence.
B u t the trial in the court-martial now is really about the equivalent
of a trial in the U.S. District Court.
If there is a conviction at the court-martial level, Mr. Chairman,
then automatically the case goes for a review in the Board of Review
in the service in which the man serves, Army, Navy, A i r Force, Coast
Guard, and so forth, if the sentence includes a discharge or confine-
ment for 1 year or more.
The Board of Review is really an intermediate appellate court. I t
consists of three lawyers. They are completely independent of any
outside influence as far as we know. There have been rumors, per-
haps, at times that command control might infiltrate to some extent
but I would think at the present moment to a very small extent.
They pass upon both questions of fact and questions of law and
the appropriateness of the sentence. They can dismiss, they can re-
duce, they can dismiss a specification or two, or three, if they desire,
they can cut the sentnece from 10 years to 5, or 2, or 3, or 1. They
have fairly complete powers.
Now, if they affirm a conviction, then within 30 days of receiving
notice of the Board of Review's decision, the accused has the right
to appeal to our court.
We then carefully examine the record to determine whether or not
there are any actual questions of law. If we find that the defend-
ant's rights have been transgressed in any way, in other words, if evi-
dence has been admitted that should have been excluded or evidence
is excluded that should have been admitted, or his constitutional
rights have been infringed upon, or he has not had a fair trial, or if
there is anything to indicate he should get a hearing in our court, we
grant the permission and it is set down for hearing.
Briefs are filed, the case is heard, and argued both for the Govern-
ment and the defendant and then within approximately 30 days we
hand down a written opinion.
I n brief, Mr. Chairman, that is about the travel of the case from
start to finish.
Mr. KORNEGAT. I n other words, the defendant, on appeal, has this
as a matter of right ?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2025

Judge Q U I N N . Yes, sir. H e is entitled to military counsel free of

charge from the very beginning. If he wants civilian counsel, he can
hire anybody he wants to, but he would have to pay for civilian
counsel.
Mr. KORNEGAY. I t goes without saying your court handles only
criminal matters.
Judge Q U I N N . T h a t is all, Mr. Chairman; yes, sir.
Mr. KORNEGAY. Are your opinions written and preserved and pub-
lished, Judge Quinn ?
Judge Q U I N N . Yes, sir. We have 12 volumes of opinions that have
been published within the last 11 years, Mr. Chairman. A t one time
work was very strenuous. When we first came into office we were
faced with 8,500 cases which could be appealed and we were told over
at the Department of Defense that it was just an impossible job, that
we could not do it, we might as well go back home and fold up, and so
on, and so forth. However, we did the job. I t was rough going for a
time. B u t I think in 1955 we wrote 359 opinions. Now our volume is
down perhaps to about, well, I would say 115 or something like that.
Mr. KORNEGAY. T h a t is the next question I was going to ask you,
if there was not a flood of appeals initially and whether or not they
gradually reduced through the years.
Judge Q U I N N . Yes, they reduced themselves as we went along, and
as we laid the guidelines they gradually went down. Of course, also,
there was a reduction in the number of men in the Armed Forces dur-
ing that period.
Mr. KORNEGAY. There were, of course, other factors that entered into
the reduction but in your personal opinion do you feel that the creation
of the court, the setting up of precedents, having them written and
published, related to the reduction of the number of appeals ?
Judge Q U I N N . Yes, I certainly think there would be a definite rela-
tionship, Mr. Chairman. There are other factors, but I certainly
figure that contributes to the reduction of the number of appeals.
Mr. KORNEGAY. I think it goes without saying that the reports of
cases written by your court and published in report form are made
available to all of the military services, to all of the courts-martial ?
Judge Q U I N N . Yes, sir. They are distributed immediately and also,
of course, made available to every public library in the United States
of America. Every law school, of course, has our reports, but the
entire Military Establishment gets them immediately.
Mr. KORNEGAY. Any questions, Mr. Ellsworth ?
Mr. ELLSWORTH. Judge Quinn, I apologize to you for being late
this morning. I have been filled in very briefly about your testimony
and the gist of it this morning. I take it you feel the effect of the
establishment of a Court of Military Appeals has been beneficial to
justice in the military services; is that right?
Judge Q U I N N . I have no doubt.
By the way, Mr. Chairman, I neglected to answer your question
about how many members there are on our court and who they were.
There are three judges. I am the Chief Judge and former Senator
Ferguson from Michigan is one of my associates and Congressman
Kilday of Texas, formerly one of your associates, is the third member
of the court.

80082—62 20
2026 JUDICIAL REVIEW OF VETERANS' CLAIMS-

I must say I am very lucky to have two very distinguished lawyers

and very hard working associates on my court.
Mr. KORNEGAY. I, of course, know Judge Kilday personally and
very favorably. He had a reputation in the House for knowing more
about military appropriations than probably any Member.
Judge Q U I N N . We are very lucky to have him.
Mr. KORNEGAT. Do you have any figures or statistics on the number
of cases that have been confirmed, reversed, or modified by your Court?
Judge Q U I N N . We can give you tomorrow, perhaps, Mr. Chairman,
a complete breakdown on that and we will send them up to you.
Actually, I would say that in the cases that we hear, of course, we deny
perhaps approximately 90 percent of the petitions that come up to us.
Of the cases that we hear, I think we perhaps grant relief in approxi-
mately 45 percent of the cases. T h a t might not mean a complete
reversal but it would be relief of one kind or another.
Mr. KORNEGAY. In other words, there would be some altering of the
judgment in less than 5 percent of the cases appealed to you ?
• J u d g e Q U I N N . I think that would be a fair statement. W e will
send to you the complete breakdown on it so you will have it, if you
would like to have it.
Mr. KORNEGAY. Yes, we would very much appreciate it.
J u d g e Q U I N N . We will send it up tomorrow, Mr. Chairman.
Mr. KORNEGAY. Mr. Downer, do you have any questions of the
judge?
SUBCOMMITTEE COUNSEL. Judge Quinn, I understand that objec-
tions raised at the time of the establishment of your court related to
the interference with command control in the military and the fact
that the volume was so great it would be impossible for the court to
handle. Do you happen to recall any other objections that were made
to the establishment of the court ?
J u d g e QUINN-. Well, very definitely, of course, the view was ex-
pressed that the civilian establishment or the establishment of a
civilian court would necessarily interfere, and impair the efficiency of
the operation of the Military Establishment. I mean that view was
very vociferously expressed. I think it was building up over the course
of years, Mr. Downer.
I served on a committee for Secretary Forrestal consisting of
A r t h u r Ballantyne, a very distinguished lawyer, formerly Secretary
of the Treasury under Hoover, Professor Downey of the University
of Columbia and I, and we made a study of that during the war and
then A r t h u r Vanderbilt, formerly President of the American B a r
Association and afterward chief justice of the State of New Jersey
and so forth, made another study and Judge McGuire of the Federal
court here in Washington made another study, and.Admiral White,
made another report to Secretary Forrestal and there were, building
up over the course of the years, an indication that something had to be
done with the quality of justice that obtained in the Military Establish-
ments during the war.
' I think perhaps as you gentlemen know, that 146 men were executed
during World W a r I I without any review in Washington at all and
the quality of justice that the ordinary G I found in the military serv-
ice more or less turned his stomach in the course of both World W a r
I and World W a r I I . Attempts were made at the end of World W a r
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2027

I to do something about it, but with the coming of the roaring twenties,
where everybody had two care in the garage and a chicken in his pot,
they forgot military justice; so with the advent of World W a r I I and
the type of thing they ran up against in that period we had this con-
sideration and then I think the unification of the services gave some
impetus to the creation of the court.
I think there were many views by the military at that time that it
would not work. First of all, the backlog was so great that no court
could possibly deal with it and, secondly, of course we would interfere
with the operation of the military processes and it just could not work.
Some very good soldiers, General Caffey, for example, who was
afterward a J u d g e Advocate General of the Army, a very distin-
guished soldier with a fine record in the landings at U t a h Beach,
favored summary action.
There is a code committee under this act, of course, consisting of the
three judges, the Judge Advocates General of the Army, the Navy,
and Air Force, and General Counsel representing the Coast Guard
which passes, of course, to the Department of Treasury in time of
peace; I remember very definitely General Caffey said to me during
the course of one of our conferences, "This thing can't work. You
have to be able to string them up to the nearest tree. I t is the example
that prevents these fellows from running away."
T h a t was his honest opinion and there are men in the Army, Navy,
and Air Force today who have that same opinion, but they are a very
small percentage.
I have gone throughout the world and interviewed our very top
officers in the Army, Navy, and Air Force and almost every one of
them has indicated to me that the code is working satisfactorily and
that they have no serious complaints about the court.
Mr. KORNEGAT. Any questions, Mr. Patterson ?
COUNSEL. N O .
Mr. KORNEGAT. Do you have an opinion as to whether or not the
establishment of precedents has cut down on the work load of your
court?
Judge Q U I N N . Yes. I n my opinion it has, Mr. Chairman.
Mr. KORNEGAT. NOW let me ask you one other question, Judge, and
that is, approximately what is the time lapse between the appeal and
the time of hearing in your court?
Judge QTTINN. Perhaps 90 days. The appellant has 30 days within
which to file his briefs and then the Government has 15 days in which
to reply.. I would say it is about 90 days from the time that the appeal
comes u p to us before it is set down for hearing and usually we get our
opinion out within 30 or 40 days and when the end of the term comes
in June, we clear our decks completely. W e have no unfinished
business.
Mr. KORNEGAT. You have no backlogof cases ?
Judge QTJINN. W e have none. Mr. Proulx, who is here, called my
attention to the fact that most of the cases that come to us have to be
disposed of under the law within 30 days. We have to grant or deny a
petition within 30 days so that 90 percent are disposed of within 30
days and the other 10 percent would take 90 days or 100 days for the
actual hearing and between 30 and 40 days before the publication of
the opinion; but we are completely up to date. We have no backlog.
2028 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. KORNEGAX. Thank you. Does anyone have any questions ?

Do you have any further questions ?
Mr. ELLSWORTH. I have no further questions.
Mr. KORNEGAT. Judge Quinn, I want to tell you again how much
we appreciate your coming here and how much we value the informa-
tion you have been able to furnish us in this case, which is very highly.
J u d g e Q U I N N . Thank you very much, Mr. Chairman and Congress-
man. I am very glad to be able to come. I want to thank you for
letting me come and talk to you and anything we can do, we will be
glad to do and we will send the figures up to you tomorrow.
Mr. KORNEGAY. We would like to get those.
Thank you very much, sir.
(The material requested follows:)
U.S. COURT OF MILITARY A P P E A L S ,
Washington, D.C., March 5, 1962.
H o n . HORACE R. KORNEGAY,
Chairman, Special Subcommittee for Judicial Review, Committee on Veterans'
Affairs, House of Representatives, Washington, D.C.
D E A R CONGRESSMAN KORNEGAY : A t y o u r r e q u e s t , I a m pleased to f o r w a r d t h e
following enclosures to supplement t h e s t a t e m e n t of Chief J u d g e Robert E.
Quinn, who a p p e a r e d before your subcommittee t h i s morning in conjunction w i t h
t h e h e a r i n g s being conducted on H . R . 849 a n d companion b i l l s :
(1) Ten-year chronology of t h e U.S. Court of Military Appeals (1951-61 ).*
(2) S t a t u s of cases filed w i t h t h e U.S. Court of Military Appeals since i t s
establishment in 1951 through fiscal year 1961.
NOTE.—Of t h e 1,727 published opinions contained i n 12 volumes, 723, or approxi-
m a t e l y 45 percent, w e r e decided by t h e court to t h e benefit of t h e accused.
(3) B r e a k d o w n of t h e 133 opinions published d u r i n g fiscal year 1961, indicat-
ing t h e individual actions t a k e n by t h e t h r e e judges.
(4) Rules of practice a n d procedure of t h e court, revised a s of J a n u a r y 1,
1962. 1
(5) Copy of t h e annual r e p o r t of t h e court a n d t h e J u d g e Advocates General
of t h e Armed Forces a n d t h e General Counsel of t h e D e p a r t m e n t of the T r e a s u r y
s u b m i t t e d t o t h e Congress f o r t h e period J a n u a r y 1, 1960, t o December 31, 1960.
T h e 1961 a n n u a l r e p o r t is now in t h e h a n d s of t h e printer. 2
If t h e court can b e of further assistance in t h i s or in a n y other m a t t e r , please
do not h e s i t a t e to call upon u s .
W i t h k i n d e s t personal regards.
Sincerely,
ALFRED C. PROXTLX,
Clerk of the Court.
Opinions rendered oy the U.S. Court of Military Appeals during fiscal year 1961
Opinions 133
Decided to t h e benefit of t h e accused 56
Decided t o t h e benefit of the accused percent 42
U n a n i m o u s opinions 34
Concurring opinions : 15
Dissenting opinions 50
Concurring in t h e result with opinion 26
Concurring a n d dissenting w i t h opinion 17
Concurrences w i t h o u t opinion 112
Dissents w i t h o u t opinion 2
Concurring in result without opinion 16

1
Printed at another point In hearing; see Index, "Military Appeals, Court of.'
• Retained in committee files.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2029
Status of cases, U.S. court of military appeals
CASES D O C K E T E D

T o t a l , as of J u l y 1, 1959, J u l y 1, 1960, T o t a l , as of
T o t a l b y services J u n e 30,1959, t o J u n e 30, t o J u n e 30, J u n e 30, 1961
1960 1961

P e t i t i o n s ( a r t . 67(b)(3)):
Army __ 7,757 342 371 8,470
Navy. _ _ 2,435 310 330 3,075
Air Force 2,866 330 252 3,448
Coast Guard 38 1 1 40

Total 13,096 983 954 15,033

Certificates ( a r t . 67(b)(2)):
Army 105 6 11 122
151 23 7 181
36 7 6 49
6 0 0 6

Total.. 298 36 24 358

M a n d a t o r y ( a r t . 67(b)(1)):
31 0 0 31
2 1 0 3
1 1 1 3
0 0 0 0

Total. 34 2 1 •37
1
13,428 1,021 979 15,428

C O U R T ACTION

P e t i t i o n s ( a r t . 67(b)(3)):
1,318 124 114 1,556
11,369 843 842 13,054
Denied b y m e m o r a n d u m o p i n i o n 1 1 0 2
9 0 1 10
279 20 8 307
Disposed of o n m o t i o n t o d i s m i s s :
7 0 1 8
36 0 2 38
Disposed of b y order s e t t i n g aside findings
2 1 0 3
107 S 23 138
C o u r t action d u e (30 d a y s ) > 67 77 57 57
29 19 25 25
Certificates ( a r t . 67(b)(2)):
282 29 37 348
6 10 2 2
5 1 0 6
0 1 0 1
0 0 0 0
0 1 1 1
6 1 1
M a n d a t o r y ( a r t . 67(b)(1)): c
33 2 1 36
0 1 0 0
1 0 0 1
1 0 1 1
Opinions rendered:
1,115 113 91 1,319
10 0 1 11
1 0 0 1
22 0 4 26
245 27 34 306
35 9 3 40
33 2 1 36
2 0 0 2
1 0 0 1
P e t i t i o n for reconsideration of p e t i t i o n for
1 0 0 1
1 0 0 1

Total... 1,466 144 134 < 1,744

1
2
2 flag officer cases; 1 Army and 1 Navy.
15,182 cases actually assigned docket numbers; 104 cases counted as both petitions and certificates; 5
cases certified twice; 12S cases submitted as petitions twice; 2 mandatory cases filed twice; 5 mandatory cases
filed
!
as petitions after second board of re view opinion; 1 case submitted as a petition for the third time.
As of June 30, 1959, 1960, and 1961.
* 1,744 cases were disposed of by 1,727 published opinions. 96 opinions were rendered in cases involving
57 Army officers, 20 Air Force officers, 13 Navy officers, 3 Marine Corps officers, 2 Coast Guard officers, and
1 West Point cadet. In addition 19 opinions were rendered in cases involving 20 civilians. The remainder
concerned enlisted personnel.
2030 JUDICIAL REVIEW OF VETERANS' CLAIMS

Status of cases, U.S. court of military appeals--Continued

T o t a l , as of J u l y 1, 1959, J u l y 1, I960, T o t a l , as of
Total b y services J u n e 30,1959 to J u n e 30, to J u n e 30, J u n e 30, 1961
1960 1961

C o m p l e t e d cases:
11,369 843 842 13,054
9 0 1 10
279 20 8 307
5 1 0 6
1,459 144 133 1,736
Disposed of o n m o t i o n to d i s m i s s :
7 0 1 8
36 0 2 38
D i s p o s e d of b y o r d e r setting aside findings
2 1 0 3
106 9 23 138
Total 13,272 1,018 1,010 15,300
]
P e n d i n g completion as of—

J u n e 30,1959 J u n e 30,1960 J u n e 30,1961

30 38 16
0 1 0
1 0 1
15 9 17
67 77 57
29 19 25
6 6 1
1 0 1

Total 149 150 118

TESTIMONY OF CYRIL F. BRICKFIELD, GENERAL COUNSEL, VET-

ERANS' ADMINISTEATION, ACCOMPANIED BY JAMES STANCIL,
CHAIRMAN OF THE BOARD OF VETERANS' APPEALS AND A. W.
FAEMER, DIEECT0E OF COMPENSATION AND PENSION SEEVICE

Mr. KOENEGAT. The correspondence and letters relating to a case

Mr. Saylor was talking about and interrogating you, Mr. Brickfield,
about last week have been produced, and in the absence of any objec-
tion, I will p u t them in the record.
( T h e material follows:)
HOUSE OF REPRESENTATIVES,
COMMITTEE ON VETERANS' AFFAIRS,
Washington, D.C., January 6,1961.
Mr. WILLIAM J. DRIVER,
Chief Benefits Director,
Veterans' Administration, Washington, D.C.
DEAR MR. DRIVER : This is to request an administrative review of the attached
claims file to determine the claimant's entitlement to a widow's pension.
The file contains a carbon copy of the original honorable discharge on form
53-55, issued to claimant's deceased husband on November 9, 1945. No other
discharge is contained in the claims file, but even so, the Veterans' Administra-
tion denied the claim for pension on the ground that the veteran was discharged
on conditions other than honorable. The file discloses that a request for infor-
mation from the Army on VA Form 3101, dated October 20, 1948, was returned
to the Veterans' Administration with a statement indicating that the veteran's
discharge was other than honorable. Subsequently, the Veterans' Administration
obtained from the Army a copy of proceedings before a board of officers which
recommended, on August 11, 1945, that the veteran be discharged under AR 615-
368, of March 7, 1945. I find nothing in the file to show compliance with the
recommendation of the board.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2031

The widow's first claim was filed September 12, 1955, and she was notified of
denial of the claim on March 14, 1956. The reason given for denial was that
official records indicate that the veteran's discharge does not meet requirements
of the law. Other letters and documents contained in the claims file indicate that
the Veterans' Administration has determined the veteran's discharge was on con-
ditions other than honorable because of the proceedings before the board of offi-
cers and the statement contained on VA Form 3101 previously referred to.
The original discharge copy which is contained in the claims file speaks for it-
self and is the best evidence of the nature of the discharge issued to the veteran.
It, therefore, seems that the widow's claim should have been allowed, and I shall
appreciate it if you will please review the file in accordance with these suggestions
and advise me of your decision.
Sincerely yours,
OLIN E. TEAGUE, Chairman.

VETERANS' ADMINISTRATION,
DEPARTMENT OP VETERANS' BENEFITS,
Washington, D.G., January 13,1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
Bouse of Representatives, Washington, B.C.
DEAR MB. CHAIRMAN : I have your letter of January 6 on this case.
Since our Army reports are not clear, we are asking them to cheek their records
carefully and certify as to the correct basis for discharge.
I will let you know as soon as we have a reply.
Very truly yours,
W. J. DRIVER,
Chief Benefits Director.

VETERANS' ADMINISTRATION,
DEPARTMENT OF VETERANS' BENEFITS,
Washington, D.C, January SO, 1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
Souse of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : I can now reply to your letter of January 6.
The Army has now certified that the Certificate of Honorable Discharge (WD
AGO Form 53-55) was issued in error. It has been determined that the veteran
was discharged under AR 615-368 and that WD AGO Form 53-56 (blue) should
have been issued.
Under these circumstances, we are bound by the military determination.
I have had the case reviewed here and we find that the Veterans' Administra-
tion decision in March 1956 that the discharge was under dishonorable conditions
was proper.
Thank you for bringing this case to my attention. I wish that our report could
have been favorable.
Very truly yours,
W. J. DRIVER,
Chief Benefits Director.
MARCH 10, 1961.
Re Army Serial No. 18008945.
Maj. Gen. R. V. LEE,
Adjutant General, Department of the Army,
Washington, D.C.
DEAR GENERAL LEE : Through the cooperation of your congressional liaison
office, I have been furnished with a copy of the above veteran's 201 file.
I have completed examination of the file and am impelled to ask that action
of the Department of the Army of October 28,1947, be rescinded. In this action
the Department of the Army attempted to revoke an honorable discharge pre-
viously issued to this veteran and substitute therefor a blue discharge, all without
notice to. the veteran. The file I have examined does not indicate that the
veteran was ever notified after this action had been taken and he was thereby
2032 JUDICIAL REVIEW OF VETERANS' CLAIMS

deprived of his right to institute proceedings before the Army Discharge Review
Board and thereby obtain a hearing on his entitlement for an honorable dis-
charge.
During the veteran's active service a Board of Officers recommended his dis-
missal from the service because of habits and traits of character which made his
retention in the service undesirable. This recommendation appears to have been
approved by the reviewing authority on August 24, 1945. Subsequently on
November 9, 1945, the veteran was given an honorable discharge on Form 53-55.
The file does, not indicate why the recommendation of the_ Board of Officers was
not complied with but the original discharge issued to him indicates that the
character of the veteran's service must have been considered at the time of the
issuance of the honorable discharge, as it states therein that 324 days were lost
under Article of War 107.
A document contained in the file, captioned "Record of Determination," relates
that on October 28, 1947, the Department of the Army determined that the issu-
ance of the honorable discharge was in error and that a blue discharge should
have been issued. This determination appears to be based entirely on specula-
tion and it further appears that the action taken was without notice to the
veteran.
The Committee on Veterans' Affairs has always considered that an honorable
discharge was conclusive evidence of the character of a person's service and
could not be impeached. I therefore request that the determination of October
28, 1947, be rescinded and that administrative action be taken declaring a restora-
tion of the honorable discharge issued to this veteran on November 9, 1945.
My interest in this matter was originally prompted by the fact that the veter-
an's surviving widow has filed a claim for pension with the Veterans' Administra-
tion for herself and three minor children. This claim was denied because of
the determination of.the.Army.previously referred to. I shall appreciate it if
you will please advise me of the action taken upon reconsideration.
Sincerely yours,
OLIN E. TEAGTJE, C flair man.

HEADQUARTERS,
DEPARTMENT OP T H E ARMY,
Washington, D.G., March 27,1961.
Re 18008945 (Mar 10, 1961).
Hon. OLIN E. TEAGETE,
Chairman, Committee on Veterans' Affairs,
Bouse of Representatives.
DEAR MR. CHAIRMAN : Reference is made to your inquiry pertaining to the dis-
charge of , 18008945.
enlisted at Houston, Tex., on August 16, 1940, for a period of 3
years. He had no prior service.
During his service he was absent without leave for 3 days, was tried by sum-
mary and special courts-martial on seven different occasions, and was sick in
hospital, not in line of duty, for a period of 30 days. He had a total of 324
days time lost under article of war 107.
Award of the Good Conduct Medal was denied him on several occasions.
A board of officers was convened at his oversea station to determine whether
he should be discharged because of undesirable habits and traits of character.
Evidence available to the board included a report of neuropsychiatric examina-
tion which was conducted on August 3, 1945. That report showed that he was
of constitutional psychopathic state, emotional instability, and that the condi-
tion was characterized by a borderline intelligence, excessive alcoholism, un-
dependability, inability to profit by experience and the lack of any response to
disciplinary measures. The examiner recommended discharge under the provi-
sions of Army Regulations 615-368.
The board recommended discharge under AR 615-368 and he was ordered to
Fort Logan, Colo., for discharge. Upon departure from the oversea command
his character was recorded as "poor" and his efficiency rating as a soldier as
"unsatisfactory."
There is an indication that upon arrival in Fort Logan, all of Mr.
records were not available at the separation center. As a result, Mr. was
erroneously issued an honorable discharge by reason of demobilization.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2033

On October 2, 1947, he applied for reenlistment at the recruiting office in

Houston. Because of the excessive lost time, a waiver was required. When
the request for waiver was received in this office, it was discovered that an
error had been made in the character of discharge.
AK 615-368, in effect at the time of discharge, required that persons
discharged thereunder would be furnished WD AGO Form 53-56 discharge
(blue).
The Department of the Army has consistently held that a discharge which is
manifestly erroneous may be administratively corrected so as to properly reflect
the service performed. Thus, based upon the facts are reflected in the records,
the Department determined on October 28, 1947, that the honorable discharge
was in error, and held that he was discharged under the provisions of AK 615-
368 with blue discharge. The service rendered by Mr. bears out the cor-
rectness of that action.
The record does not show that a corrected discharge was furnished to Mr.
. Mrs. , by letter dated November 21, 1955, was advised of the
change.
If Mrs. feels that an error was made or injustice was done because of
the discharge, she may complete and forward the enclosed application form to
the Army Board for Correction of Military Records. The furnishing of this
form does not in any way imply that an error or injustice did, in fact, occur.
The receipt of the application does not assure a formal hearing, or favorable ac-
tion by the Board, since each case is considered in the light of the full evi-
dence presented and is determined on its individual merit.
I hope this information will be of assistance.
Sincerely yours,
R. V. LEE,
Major General, U.S. Army, the Adjutant General.

U.S. HOUSE OF REPRESENTATIVES.

Washington, D.C., April 19,1961.
Re Army serial No. 18008945.
Mr. P. N. BBOWNSTEIIV-,
Chief Benefits Director,
Veterans' Administration, Washington, D.C.
DEAR ME. BROWIVSTEIN : Reference is made to my letter of January 0, 1961,
and your letter of January 30, 1961, copies of which are enclosed herewith, I am
also enclosing a copy of the letter from the Adjutant General of the Army dated
March 27,1961, in regard to this subject.
Tour letter of January 30, 1961, indicates that your denial of the claim was
based on the fact that the Army stated it had determined that the veteran was
discharged under AR 615-368 and that WD AGO Form 53-56 (blue) should have
been issued. The enclosed letter from the Adjutant General reveals that this
action was taken without any notice to the veteran, that no other discharge was
ever issued to him, and that no notice was ever given to him of the action after
it had been taken. This letter indicates that the first notification of the action
taken was by letter to Mrs. on November 21, 1955, some time after the
death of the veteran.
As pointed out to you in my letter of January 6, 1961, the only discharge con-
tained in the claims file is the honorable discharge issued to the veteran on
November 9, 1945. The enclosed letter from the Adjutant General confirms that
no other discharge was ever issued to him. It seems clear that the only action
taken by the Army consists of the filing within the veteran's service file of the
written statement of some person expressing his views that the Army should
have taken a course of action different from the action that was actually taken.
I submit that this action is totally ineffective to change the character of the
veteran's discharge; that the discharge speaks for itself and cannot be im-
peached.
I shall appreciate if you will give further consideration to Mrs. entitle-
ment to pension and advise me of your decision.
Very truly yours,
OLIN E. TEAGUE, Chairman.
2034 JUDICIAL REVIEW OF VETERANS' CLAIMS

VETERANS' ADMINISTRATION,
DEPARTMENT OF VETERANS BENEFITS,
Washington, B.C., May 12, 1961.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: We have made a careful study of the problem raised
in your letter of April 19.
As you know, we must accept the military determination as to military status
and character of discharge. The responsibility for these determinations is upon
the military services, and such determinations must be made in accordance with
their policies and practices.
In this case we have decided that we must accept the certification of the
Department of the Army that the veteran's discharge was not honorable and that
the honorable discharge was an error which has been properly corrected. To
regard the discharge as honorable in the face of an Army certification that it
was not honorable would be, in effect, a reversal of the official Army determina-
tion by the Veterans' Administration, which we do not have the authority to do.
This does not mean that the Veterans' Administration has impeached a dis-
charge. The Veterans' Administration has received two reports from the service
department, and they are inconsistent. In the circumstances, we are bound by
the report which the service department regards as correct, even though this
means that the other report is in a sense impeached. Which of the reports is
impeached, however, is determined by the service department.
In similar cases, where there was mistake or ambiguity by the service depart-
ment, neither the department nor the Veterans' Administration has been con-
cluded by a report or action initially taken. For example, in United States v.
Bentley, 10T F. 2d 382 (1939) one of the headnotes reads as follows:
"Where Secretary of War certified veteran to the Director of Veterans Bureau
for an adjusted service credit upon which the director issued veteran a certifi-
cate, and secretary subsequently discovered that he had certified the veteran
by mistake for a credit of more than that to which he was entitled, the Secretary
and Director were empowered to correct the certification and certificate. * * *"
I assure you that we have given this question every possible consideration, and
am sorry that we cannot take favorable action. If any change in the military
status is made by the Department of the Army, we will certainly be glad to
reconsider the case.
Very truly yours,
P. N. BROWNSTEIN,
Chief Benefits Director.
Mr. KORNEGAY. Mr. Brickfield, we are delighted to see you and glad
to have you back with us this morning with your fine staff.
I believe at the close of last Thursday's hearing I was asking about
some things. Have you been able to get those up ?
Mr. BRICKFIELD. I believe so, Mr. Kornegay, but at this point I
must say I made a misstatement last Thursday and, with your per-
mission, I would like to correct it. There was a case that I mentioned
called the Trainas case.
Mr. KORNEGAT. I t was an insurance case ?
Mr. BRICKFIELD. Gratuitous insurance case at 292 Fed. (2d) 743,
in which I stated that the Veterans' Administration's position was
upheld in the district court and reversed on appeal and the truth is
t h a t the claimant was successful in the district court and, of course,
the case was affirmed on appeal. So where I said there was a reversal,
it was in fact an affirmance. I confused the results of this case with one
called the Tawaran case, which was decided 2 weeks ago, February
15, 1962, in which the V A was upheld in the district court and re-
versed in the circuit court of appeals. Mr. Saylor commented on it,
Mr. Kornegay, and since I was incorrect, I wanted to submit the infor-
mation this morning.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2035

Mr. KOENEGAT. Well, let the record stand corrected. W e appreciate

very much your making those corrections and calling them to our
attention.
Mr. STANCIL. Mr. Kornegay, I have the statistics which you asked
for which I will submit for the record with this information.
I believe as you framed your question i t was for an analysis of the
appeals filed. The statistics available to me are in terms of an analysis
of decisions made by the board for fiscal year 1961. I believe this will
meet your purpose and it is a substantial block of approximately
35,000 cases broken down by subject matters and categories with num-
bers for each category.
Shall I submit it for the record ?
(The material referred to follows:)

Analysis of decisions on cases disposed of by Board of Veterans Appeals,

fiscal year 1961
Disposition:
Allowed 3,831
Denied 27,682
Remanded 3,077
Withdrawn 95
Dismissed 13
Total cases 34, 698
Decisions 44,398
Disability compensation ' 30, 451
Service connection 16, 065
Increased rating 14, 386
Disability pension 5, 960
Nonservice entitlement 5, 606
Nonservice increased rating 354
Disability compensation and pension miscellaneous; miscellaneous
includes: Basic eligibility; accrued benefits; character of dis-
charge ; dependency; conveyance; special housing; apportion-
ment ; PTE dental treatment; retroactive awards; military
status 1,057
Death compensation 2, 269
Service connection 1, 752
Legal relationship 488
Income 8
Retroactive 21
Death pension 870
Nonservice entitlement 493
Nonservice legal relationships 377
Death compensation and pension miscellaneous 393
Insurance 422
'Disability waiver and disability benefits 161
Contract 12
Beneficiary 161
Military < 1
Public Law 23, 82d Cong., indemnification 10
Miscellaneous 77
2036 JUDICIAL REVIEW OF VETERANS' CLAIMS

Analysis of decisions on cases disposed of by Board of Veterans Appeals,

fiscal year 1961—Continued
Disposition—Continued
Vocational rehabilitation t r a i n i n g 111
Need for training 69
Need for additional t r a i n i n g 24
Miscellaneous 18
Service Readjustment Act, World W a r I I and w a r o r p h a n ' s 1, 573

Basic eligibility 136

Initial training 407
Additional t r a i n i n g 706
Miscellaneous — 234

W a i v e r a n d forfeiture 669

Compensation or pension 558

V.R. & E 57
Insurance 54

Medical t r e a t m e n t 170
Dental 151
Medical 19
Reimbursement medical t r e a t m e n t 283
Withdrawn 87
Dismissed S3

Mr. STANCIL. I might add, Mr. Kornegay, while there is some detail
in the breakdown it would be impossible to cover in minute detail the
variation of subject matter under the different categories.
F o r example, under the death compensation cases conceivably there
are many more issues than the four main types of issues t h a t are listed.
And there can be breakdowns of those ad infinitum.
Mr. KORNEGAV. Certainly, though, we could find out for our interest
what number of procedures are involved in certain categories such as
the question of service connection, and things of that sort?
Mr. STANCIL. This would give you a good idea of the composition
of the appellant's workload. There is not a substantial change from
last year to this year or the next year. Over a period of time there
are, of course, changes. F o r example, the vocational rehabilitation
and educational cases at one time constituted 23 percent of our work-
load and j'ou will see by those figures that now it is a phasing out
program.
Mr. KORNEGAY. Mr. Brickfield, I direct your attention to page 2
of your statement where you indicate that in your opinion the estab-
lishment of an independent court of appeals would place the VA in an
adversary position with respect to the claimant and this philosophy
might filter down through the adjudication process.
Let me ask you if it is not true that the VA, under the present sys-
tem, often obtains evidence on its own initiative to rebut the appli-
cant's claims to benefits ?
Mr. BRICKFIELD. I think that is true, Mr. Kornegay, as a necessary
incident of the job that is imposed upon the Veterans' Administration,
because under the law we have the duty of helping a claimant in the
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2037

preparation of his claim. Now, this cuts two ways. W e help him
secure material certainly in his favor. That is the way we are oriented
;ind at the same time as we develop the case we will oftentimes develop
evidence that is unfavorable to the claimant. But what we try to do
is to develop the entire record and once we have all of the facts, then
the chips fall either in his favor or not in his favor. But to be respon-
sive, there are occasions when we do develop evidence that is unfavor-
able to the claimant.
Mr. KORNEGAY. Well, of course by doing that you take action that
is adverse to the claim of the applicant.
Mr. BRICKFIELD. That is right, sir.
Mr. KORNEGAT. And do you feel that it puts you in an awkward
position of being interested in obtaining both information and evi-
dence that is favorable to the claimant and at the same time obtain
evidence and information that is unfavorable to the claimant ?
Mr. BRICKFIELD. I t is not an awkward position, Mr. Kornegay. I t
puts us in a position of having the feeling of doing a complete job.
I might say that our tendency, is to be pro-claimant.
Mr. KORNEGAY. Then you feel that it does not impair your operation
at all to be placed in this dual capacity of sort of being for and against
at the same time ?
Mr. BRICKFIELD. Well, where we are trying to develop a claim,
we do not take a position of being adversary, we are there to help
the claimant.
Mr. KORNEGAY. Now, sir, in the last sentence of the same paragraph
you state:
We are concerned that regardless of what informality you attempt to build into
any bill establishing a Court of Veterans' Appeals the fact that a court review
existed would induce a rigidity and inflexibility into our procedures not only in
the Board of Veteran's Appeals but in the agencies of original jurisdiction as
well.
Mr. BRICKFIELD. Yes, sir.
Mr. KORNEGAY. NOW, is it not true that the English common law
system adopted in this country is based on the principle of stare decisis?
Mr. BRICKFIELD. Yes, sir. And I think it is in line with my state-
ment. Stare decisis, as I understand it, means you are really setting
a precedent which is to be followed.
Mr. KORNEGAY. Yes.
Mr. BRICKFIELD. And if we have a Court of Veterans' Appeals
which establishes decisions, those decision would be mandatory upon
the Veterans' Administration and we would necessarily follow them.
I say that when you come down to the point where you are manda-
torily following a court decision or precedent, then you induce rigidity,
because there is no other place we can go but to follow the decision.
Mr. KORNEGAY. Of course that is true, but by your statement it
would induce rigidity and inflexibility, is that not in itself stating
the principle of stare decisis is objectionable to the administration of
your operations ?
Mr. BRICKFIELD. I don't think it is objectionable, but I think you
must go back, Mr. Kornegay, to basic principles and we are here
dealing with administrative law, which had its founding in the civil
codes of Europe and not in the common law of England.
2038 JUDICIAL REVIEW OF VETERANS' CLAIMS

T h e civil code is stated in the form of a set of principles. A code

contains broad principles and each case as it comes up, is interpreted
'in the light of these broad general principles, as distinguished from
the common law where you decide a case and that case becomes the
law thereafter and everybody must follow it.
• Mr. KORNEGAY. I t becomes the law on that particular principle;
is that the idea ?
Mr. BRICKFIELD. I t becomes the law of the case.
Mr. KORNEGAY. The law of the case, but each case is handled on
its own merits. I do not mean to say we want to be so limited
there that it would be completely restricted.
' Mr. BRICKFIELD. I think each case is handled on its own merits
as to the facts but as to the principle of law involved, each case is
governed by prior decisions of the court under stare decisis.
Mr. KORNEGAY. Let me ask you t h i s : If it is possible, a n d . I don't
know that it is or that it ever happend, but if you find two cases
which have the exact same set of facts, same circumstances; why
should not the decisions be the same in both cases ?
Mr. BRICKFIELD. I believe it should be. T h a t is an instance where
courts use legal expression of being "on all fours" with a preceding
case.
Mr. KORNEGAY. That is right. Then you find no objection to that
type of procedure ?
Mr. BRICKFIELD. Certainly not, Mr. Kornegay. To bring iis back
to my statement, where you do have a decision that decision becomes
controlling on the Veterans' Administration and to that extent, since
we cannot change the decision you have an inflexibility.
Mr. KORNEGAY. Well, it would be controlling only as to that par-
ticular factual situation, would it not ?
Mr. BRICKFIELD. I t would be controlling as to that and to all
future claims which have a factual situation similar to the case decided
by the court.
Mr. KORNEGAY. Where you can distinguish the facts of a case from
that case which has been decided, would you not have a new ball-
game, so to speak ?
Mr. BRICKFIELD. I believe that is true, sir.
Mr. KORNEGAY. Therefore, would it not necessarily follow that
this would not be such rigidity or inflexibility that would impair the
Veterans' Administration in its future handling of claims, but instead
it would operate as a guide?
Mr. BRICKFIELD. If you get a Court of Veterans' Appeals handing
down a decision interpreting a statute, that becomes controlling on
the Veterans' Administration; and once you have a court decision,
the the Veterans' Administration must entertain future cases and
facts in keeping with the standards set down by the decision and to
that extent I say it does confine the Veterans' Administration.
Mr. KORNEGAY. NOW, a question has been raised, probably by you,
and I know by others, with reference to the interpretation and effect
of section 4056 and I refer specifically to H . E . 775. If that section
were amended by adding the term or words to this effect, or similar
to this, "reconsider any decision formerly made by the Board be-
cause of new and material evidence not available at the time of the
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2039

prior hearing or prior trial," in your opinion, would that help it any ?
Mr. BRICKFIELD. I believe it would help, Mr. Kornegay, and I so
stated last Thursday.
The point that I think is important is this. If you have the Court
of Veterans Appeals handing down a decision and thereafter you say
that the Veterans' Administration may reconsider that decision if
there is new and material evidence, then the question is, " W h a t kind
of new and material evidence must be submitted," because in order
for the claimant to be successful he must submit new and material
evidence of such weight as to overcome the court decision.
Otherwise, as I pointed out, he would be doing a useless thing. If
we have a court decision that is unfavorable to a person and it is
staring him in the face, he has only one purpose in mind; namely, to
overcome the court of appeals decision. So the evidence he brings in
must be of sufficient intensity and weight as to overcome the court's
decision.
Mr. KORNEGAY. Would it have to be that strong or would it merely
have to be sufficient to have some bearing on the opinion of the court?
Mr. BRICKFIELD. When you say "bearing," you are talking about
whether it is pertinent but my feeling is, Mr. Kornegay, that the
veterans' purpose in coming in with new evidence is to come out with
a decision other than that handed down by the court of appeals.
Mr. KORNEGAY. T h a t is true. I am speaking strictly of the VA
and the court. As I understand it, in all of our civil courts, in all of
our Federal and State jurisdictions, there are procedures for new
trials on the ground of newly discovered evidence.
" Now, in analyzing the newly discovered evidence there are certain
standards set up or prescribed in the law but it does not have to be
sufficient to make it obvious to the judge ruling on the case that it
is sufficient to overrule the case, but if it is sufficient to have a bearing
on the ultimate outcome of the case. I s that not sufficient ground for
a new trial ?
Mr. BRICKFIELD. Yes. That is true. One can come in with new
and material evidence at any time and ask for reconsideration or a
new trial. But, essentially, in order for the claimant to be successful,
as distinguished from just having his claim entertained and recon-
sidered—we can reconsider cases every day—but in order for him
to be successful, and this is why he is seeking reconsideration he must
bring in evidence of sufficient weight as to overcome the court of
appeals decision.
Mr. KORNEGAY. Well, now, it would help me better to understand
what you are saying. Under your procedure, would the court of ap-
peals itself make that necessary ruling as to whether or not the evi-
dence, that is, newly discovered evidence or new evidence that had not
heretofore been considered be sufficient to reopen the case, would the.
Board of Appeals make that decision or would the regional office?
Mr. BRICKFIELD. I n the language of section 4056 of the bill as I
understand it, Mr. Kornegay, the Board of Veterans Appeals could
make that decision in the first instance.
Mr. STANCIL. May I interject? The Board of Veterans Appeals
is entirely a reviewing body and I would make a slight correction that
it would be adjudicated first and then reviewed on appeal by the
Board of Appeals. We do not entertain original evidence.
2040 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. KORNEGAY. You do not entertain original evidence ?

Mr. STANCIL. That is right. I n my opinion, under the new bill
new and material evidence would be adjudicated at the level of orig-
inal jurisdiction, reviewed on appeal by the Board of Veterans Ap-
peals, and presumably, too, the court of appeals.
Mr. KORNEGAY. Take, for example, after a veteran files his claim,
where is it denied ?
Mr. STANCIL. In the regional office.
Mr. KORNEGAY. I t goes to the Board .of Veterans Appeals and is
again'denied there. Sometimes'a year after-that trial he comes up
with some additional evidence, maybe medical or factual with refer-
ence to what actually happened which he feels was new and material
and was not available at the time of the original hearing. H e files
again, reopens his claim and presses it at the local level or the original
office?
Mr. STANCIL. Yes. The theory behind this under the present law,
our decision being final, he would have nowhere to go if we took the
evidence and denied it. Our system calls for his being entitled to have
the evidence adjudicated by the original office or other agency of orig-
inal jurisdiction and to have that evidence reviewed on appeal.
Mr. KORNEGAY. Well, now, I can follow your thinking, Mr. Brick-
field, insofar as I think the thinking of the hearing officer at the local
level would be, and t h a t is that he would probably take the position
that newly discovered evidence would have to be so compelling as to
overturn the decision of the Board of Appeals. B u t I have trouble
satisfying myself that that is a proper attitude to have about it for
this reason: Whether he is entitled to compensation or not, I think he
is entitled to have that matter adjudicated fairly within the frame-
work of the Veterans' Administration. Of course he could always
appeal from an adverse decision and get it back before the Board of
Appeals ? Now, when he got it back up there, of course, they would
be, under the present setup, the court of last resort. They could
reanalyze and open the claim; is that correct ?
Mr. BRICKFIELD. That is correct.
Mr. STANCIL. If I may, I think what we are talking about is the
probative value of the evidence. Under the present law where the
Board of Veterans Appeals makes the final decision, the rating board
in the regional office, on new and material evidence, can reach a differ-
ent conclusion than that reached previously. The handicap that the
regional office would be under and perhaps the handicap the Vet-
erans' Administration would be under with a decision rendered from
the Court of Veterans Appeals is this: By present law the decision of
the Board of Veterans Appeals is final and it is specifically in the law
t h a t another agency cannot reverse this, you see. So it is a question
of the probative value of the new and material evidence, whether this
affords the regional office a basis for now granting the benefit or
whether it is of so little probative value that to do so would violate the
law, that they cannot reverse the decision of the Board of Veterans
Appeals.
I do not know if this clarifies it or not. Certainly if the evidence
filed ever today in the regional office has sufficient probative value
then the regional office can and does arrive at a conclusion different
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2041

from that previously reached on the claim, whether at the appellate

level or lower level.
Mr. KORNEGAY*. Let me ask 3'ou this in that connection, Mr. Stancil.
Would there be any communication between the regional office and the
Washington office or the Board of Veterans Appeals if they appealed
in cases of that sort?
Mr. STANCIL. N O .
Mr. KORNEGAY. Does the regional office operate completely inde-
pendently in situations of this type?
Mr. STANCIL. Yes; our jurisdiction attaches when there is a timely
filed appeal, within the time limit by law, and the record is certified
to us by appellate review. After a decision, the record goes back to the
field office. The Board is completely separate.
Mr. KORNEGAY. Is there a reluctance on the part of regional offices
to reverse the Board of Appeals?
Mr. STANCIL. Again you get to probative value of the evidence.
Again there are many, many, instances, I am sure, and Mr. Farmer
could dig them up.
Mr. KORNEGAY. Would there be a reluctance?
Mr. STANCIL. There would be a reluctance to reverse the case where
there had been an appellate decision and there is no evidence of sub-
stantial weight. On repetitive evidence, for example, the regional
office would be, as you say, extremely reluctant.
Mr. KORNEGAY. Of course, if it had no probative value or slight
probative value, it would be certainly a proper disposition but I am
speaking of cases where it has great probative value.
Mr. STANCIL. Then they are entirely free to reverse. While I have
no personnel in those offices, it is my impression there is no reluctance
to reverse when evidence of substantial probative value is entered.
Mr. BRICKFIEU). May I make a comment, Mr. Kornegay ?
Mr. KORNEGAY-. Surely.
Mr. BRICKFIELD. W h a t we are saying to you here is this: When the
Veterans' Administration reopens a case following a court decision,
it can say to the veteran, "Your evidence is new and it is material, yet
it is not of sufficient weight to overcome the court's decision."
I come back to what I said originally, that the very purpose of the
veterans submitting new evidence is, in effect, to overcome the court's
decision.
Mr. KORNEGAY. How can a Board make a decision saying that?
Mr. BRICKFIELD. The Veterans' Administration can so decide simply
by finding that the new evidence submitted is of such probative force
that if it was before the court of appeals at the time of the original
appeal, the court would have said the new evidence tilted its decision
in favor of the claimant.
Mr. ELLSWORTH. Would you yield, to clear up a confusion that
exists in my mind. You are saying you have a strong objection to
this court, among other reasons, that the VA would be reluctant to
have cases reopened where the veteran might benefit by a reconsidera-
tion of the case.
Mr. BRICKFIELD. No, Mr. Ellsworth: we are here discussing the
meaning of section 4056 of H.K. 775. I think Mr. Kornegay raised it
and wanted to know what was the meaning of section 4056. The lan-

S0082—62 21
2042 JUDICIAL REVIEW OF VETERANS' CLAIMS

guage is ambiguous, and he thought the situation could be remedied

if we added the words "new and material evidence," and our position
is that we are always reopening cases, but once you have a court deci-
sion, and we reconsider the case, then what kind of new and material
evidence does the veteran need to submit in order to be successful ?
Mr. ELLSWORTH. The point I am trying to make, or that exists in
my mind, whatever the V A says about it, it is going to be pretty final,
because supposing the veteran is allowed to reopen the case, or you re-
open the case on flimsy evidence and reach the decision in favor of the
veteran on account of that, then who is going to appeal to the court of
appeals ?
Mr. BRICKFIELD. N O one will appeal. B u t you must look at the
other side of the picture. We are dealing with a hypothetical situa-
tion here; but let us assume that the veteran brought in new and mate-
rial evidence, and we held that it was not sufficient, simply stated it
would be that the new evidence, even though material, was not of suf-
ficient probative force to overcome the court of appeals decision.
Mr. KORNEGAY. Do you have any figures, or are there any figures
contained in your figures here, on the number of cases that are ap-
pealed on the ground of newly discovered evidence or new and mate-
rial evidence ? Can you give us those figures and the results of .those
cases, also ?
Mr. STANCIL. NO.
Mr. BRICKFIELD. Well, I think we have some statistics here, Mr.
Kornegay. N o ; I withdraw that.
Mr. STANCIL. Perhaps I can help you a little bit. Because of the
structure which ^ve have, new and material evidence is filed in the
regional office or other offices of original jurisdiction, and then the
same appellate right attaches to the adjudication on that new and
material evidence. I am not able to break out statistically that por-
tion of the appeals loads which represent reopened cases.
W h a t Mr. Brickfield was just mentioning here, I was showing him
before the hearing some statistics on reconsiderations by the Board.
You may or many not know that the Board's rules of practice do pro-
vide for the appellant or representative to allege error of fact or law
in the Board's decision. We have always been pretty liberal in en-
tertaining either a request for hearing or a brief alleging error of
fact or law in the board's decision, because we have always taken the
position if there is such an error we are the first ones that want to
correct it. The number of cases are not large, a very small percent of
our total workload. B u t this avenue does exist and is utilized, fre-
quently with favorable results to the claimant.
Mr. KORNEGAT. If you do not have the figures, do you have any asp-
proximate figure?
Mr. STANCIL. Yes, sir. I n fiscal year 1960 there were 376 such re-
considerations of which 19.2 percent were allowed and 13.6 percent
were remanded for additional development of the evidence.
I n 1961 there were 278 such reconsiderations with 21.2 percent al-
lowed and 16.9 percent remanded.
I n fiscal year 1962, in the first 6 months, there were 132 reconsidera-
tions, of which 22 percent were allowed and 5.3 percent remanded.
A t a point in here, and I will get the exact dates and give it to you
for the record, we revised our reconsideration procedure to some ex-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2043

tent. Because of the wording of the law that a decision by a section

of the Board, if unanimously concurred in, because the final decision,
u p until the time we made this change with the concurrence of our
General Counsel, all reconsiderations were made by the same section
of the Board which entered the original decision.
I n April 1960, we revised this procedure. W e were still confronted
by the language of the present law t h a t once a decision is made by a
section of the board arriving at a unanimous conclusion, then it be-
comes final. Still being confronted with that, we changed the proce-
dure to this extent. On the reconsideration we augment the original
section by adding an additional panel, sometimes two, so it becomes
a six-man or nine-man reconsideration and brings uncommitted minds
to the problem. That has been in effect since April 1960.
Mr. KORJTEGAY. Prior to that time did the same panel hear the mo-
tion to reconsider that heard the case initially ?
Mr. STANCIL. Yes, sir. I might say tins was always done objec-
tively and without committed positions to the extent that human be-
ings are capable of this kind of an attitude. B u t I think our present
procedure is better because the interested case advocates arid claimants
can obviously have more faith in the objectivity of reconsideration
when they know that uncommitted minds are being p u t on the con-
sideration panel. We wondered at the time this was done whether it
would encourage reconsiderations in the sense that it would provide
another appellate avenue and might become routine, which, of course,
would be contrary to the concept of the present law, one review on
appeal, but I am glad this is not so. This is to the credit of the serv-
ice organizations, mainly, who are, of course the interested case ad-
vocates in the overwhelming majority of cases we handle. They are
exercising a high degree of selectivity, really feeling they have some-
thing to allege in making the motion to reconsider, and actually the
number of requests for reconsideration has gone down under this pro-
cedure by about 25 percent.
Mr. KORNEGAY. Thank you, Mr. Stancil.
Now, in line with this same thing, one of the objections that has
been made to the creation of the review court is that the doctrine of
res adjudicata would be made applicable. Is not that doctrine also
recognized, now recognized by the Veterans' Administration ?
Mr. BRICKFIELD. Yes.
Mr. KORNEGAY. I n connection with your functions ?
Mr. BRICKFIELD. Mr. Kornegay, I think earlier when j7ou were dis-
cussing this situation of two cases being identical, you had a situation
where the doctrine of res adjudicata applies. I think we have a num-
ber of cases, not a large number, whereby that doctrine is controlling,
but I think the doctrine of stare decisis would be the one under H.R.
77r> that would give, us more trouble, rather than the doctrine of res
adjudicata.
Mr. KORXEGAV. Well, the point I am trying to make is that, now,
under the present procedure, under the present law, the doctrine of
res adjudicata is applicable.
Mr. BRICKFIELD. Yes, sir, if it falls into a narrow fact situation,
yes, sir.
Mr. KORNEGAY. I am talking about the principle, the saying that a
matter or thing has been adjudicated.
2044 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. STANCIL. Are you talking about the Board of Veterans Appeals
decisions being governing under the doctrine ?
Mr. KORNEGAY. Yes.
Mr. STANCIL. That is not the case in this respect. The Board of
Veterans Appeals as well as all the adjudicative agencies of original
jurisdiction are bound by the law itself and V A regulations.
Mr. KORNEGAY. Does not VA law prescribe in effect the doctrine of
res adjudicata?
Mr. STANCIL. I n a sense, but the body of precedents that are for
application and adjudication are the regulations, the instructions of
the Administrator and what the law refers to in the section of the
code pertaining to Board of Veterans Appeals as precedent opinions
of the Chief Law Officer or a wording similar to that. These are
published Administrator's decisions of cases of precedent value, us-
ually points of law, rendered by the General Counsel and approved
by the Administrator and published.
The Board of Veterans Appeals decisions are individual case de-
cisions and are not regarded as precedents. Of course they have their
impact on the rating agencies because the rating agencies will look
to see what happens on appeal but these Board of Veterans Appeals
decisions are not published: They are confidential between the claim-
ant and representative and Veterans' Administration and are not avail-
able as a body of precedent law for the lower agencies.
Mr. KORNEGAY. In that connection the matter of stare decisis is
more applicable than res adjudicata? I am speaking of the objection
made by one or two of the veterans' organizations as to the creation
of the court, being that it will bring into play or establish the doc-
trine of res adjudicata. The point is, it is already in existence and is
actually written into the law, as I see it, and interpret it, under the
section 4004 which says, subsection (b), that when a claim is disallowed
by the Board it may not thereafter be reopened or allowed and no
claim based on the same factual basis shall be considered.
Mr. BRICKFIELD. The significant point there is that no case based
on the same factual situation can be considered. Once you change
the facts, Mr. Kornegay, you no longer have res adjudicata.
Mr. KORNEGAY. That is right, and that is as it should be.
Mr. STANCIL. I n that section where a claim has been disallowed, a
later claim on the same issue, if supported by' new and material evi-
dence shall have the attributes of the new claim and so on.
Mr. KORNEGAY. But this section (b) of 4004 goes on that, however,
if subsequent to disallowance of a claim new and material evidence
in the form of official reports from the proper service agency is se-
cured, the Board may authorize reopening the claim and review the
decision.
Mr. STANCIL. That is one of the sections of the code that needs
changing because in the first place, a report from the service depart-
ment is not new and material in a legal sense because it has always been
constructively in the possession of the Government, and section 3004
conferring the status of a new claim on new and material evidence, I
believe, would override to some degree the portion of section 4004(b)
which you just read.
, Mr. KORNEGAY*. YOU mean 3004?
Mr. STANCIL. Section 3004, yes, sir.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2045

Mr. KORNEGAY. Back to 4004, section ( b ) , it appears to me that this

statute restricts very severely the type of new and material evidence
that could be considered. That is only new and material evidence
which is in the form of official reports from the proper service depart-
ments, is that correct?
Mr. S T A N C H . T h a t was my point, that a literal reading of this
wording would restrict, and then turning to the other section I cited,
section 3004, it is wider than that and as a practical matter the claim-
ant's avenue of reopening the case with new and material evidence
is not restricted to what is cited in 4004. Any new and material
evidence would reopen the claim in the office of original jurisdiction
subject to the right of review on appeal.
Mr. KORXEGAY. Well, the bill then would be far more liberal, is it
is drawn now, by adding the section, "new and material evidence not
available at the time of prior hearing"? I t would be far more liberal
than the present law under section 4004 with reference to this business
of new claims as to whether or not it is res adjudicata?
Mr. STAXCIL. T O that specific section 4004 taken out of context, yes,
but to the total law, no, sir, it would be precisely the same as it exists
today.
Mr. KORXEGAY. Precisely.
Mr. STAXCIL. That new and material evidence will reopen the claim.
Mr. KORXEGAY. I n other words, if this bill were enacted, it would
not then change this phase of the present operating procedure of the
VA.
Mr. STAXCIL. I think not.
Mr. KORXEGAY. S O that there is little or no bearing insofar as the
creation of the court bringing into play the doctrine of res adjudicata
which would act adversely to the veteran?
Mr. BRICKFIELD. I think that is a true statement.
Mr. KORXEGAY. NOW, Mr. Brickfield, on the top of page 3 of your
statement you say, "Also a court, unless equipped with a medical staff
to analyze and interpret medical findings and records, wTould lack the
expertise necessary for the consideration of a veteran's claim." Is that
right, sir?
Mr. BRICKFIELD. T h a t is right, sir.
Mr. KORNEGAY. Of course you recognize that courts and independent
tribunals in every p a r t of this country adjudicate claims every day
which require the evaluation of medical findings and records such as
workmen's compensation cases, personal injury cases and cases of that
sort, is that not correct?
Mr. BRICKFIELD. T h a t is true. Correct.
Mr. KORNEGAY. Well, what possible objection could there be to hav-
ing the Commissioner, under the proposal here, pass upon that type of
thing? Why would it be impractical?
Mr. BRICKFIELD. I think we should have an understanding of the
two areas of medical evidence that would come before a Commission.
As I understand this bill, the Commissioner would receive the file of
the veteran's claim, plus a transcript of the record which was before
the Board of Veterans Appeals. Now, this file contains primary or
raw evidence. I t may contain hospital records, it may contain in writ-
ten form the examination that a doctor performed upon the veteran
2046 JUDICIAL, REVIEW OF VETERANS' CLAIMS

and it may contain an X-ray photograph and things of that nature.

Now, when the Commissioner receives it, either he himself must evalu-
ate this X-ray plate for example, or he needs a medical expert to
evaluate it.
If I might digress for a moment, each of our panels on our Board
of Veterans Appeals has a medical expert who is a member of the
Board.
I n such a situation where you have this raw evidence before the
Commissioner, you need as one approach, people who are employees
or consultants of the Board of Veterans Appeals, who are medical
doctors or medical experts, who can evaluate this raw evidence and
give their opinions to the Commissioner. A second approach would
be for the claimant to bring in expert doctors to testify on behalf
of the claimant as to what certain X-ray photographs mean and on the
other hand, the Veterans' Administration, if there is a contest, would
bring in its own medical doctors to give the Commissioner the Vet-
erans' Administration's view as to the evaluation of a photograph.
So you have, then, as I see it, two ways of getting evidence before
the Commissioner; namely, staff people who are employees or con-
sultants of the Board of Veterans Appeals who are expert medical
people, or you have partisan expert witnesses' testimony.
Mr. KORNEGAY. That, of course relates only to raw evidence con-
tained in the file ?
Mr. BRICKFIELD. That is right.
Mr. KORNEGAY*. I see your point there. But is it not a fact that
much of the medical testimony and other testimony related to these
claims could be and would be procured by the veteran or his attorney
or the service officer in the location or locality in which he lives and
there could be brought in doctors and other witnesses to testify about
the claim and about the contentions of the claimant?
Mr. BRICKFIELD. Yes. That is why I say, Mr. Kornegay, you have
this adversary proceeding before a commissioner of the court where
you have the veteran bringing in his own doctor to testif}' as a medical
expert. All of this, as I point out, could be expensive, since as I under-
stand H.K. 775, the veteran foots the bill for bringing in the medical
witnesses.
The only other way you could have it, if it is a question of veteran's
expense, is for the court itself to have on hand a staff of medical ex-
pert employees and consultants who would evaluate the medical testi-
mony and give the Commissioner the benefit of their views. But I
come back basically to this point. W h a t are we doing here? Are
we really substituting one group's opinion, namely, another doctor's
opinion, for the opinion of the doctors and the Board of Veterans Ap-
peals ? If we are substituting one group's opinion for another group's
opinion, you don't have a review, you have, rather, a trial de novo. As
we pointed out, the Commissioner may even take new evidence.
Mr. KORNEGAY. That has been suggested by some, that that is the
way it should be.
Mr. BRICKFIELD. Well, it has been more than suggested. I think
it is in the text of the bill that the Commissioners would be au-
thorized to hold hearings and take additional evidence and permit
cross examination of witnesses.
Mr. STANCIL. If I may add a word?
 JUDICIAL REVIEW OP VETERANS' CLAIMS 2047

Mr. KORNEGAY. Mr. Stancil, proceed.

Mr. STANCIL. I was going to add that we, of course, now receive all
sorts of evidence from private physicians who are witnesses that
veterans wish to present. Some statements are based on memory and
some are on records and frequently they are on a background of facts
secured only from the veteran. I think that if the court is to reach
the best possible conclusion, that the medical expertise Mr. Brickfield
has been speaking of must be supplied on the basis of a review of the
entire applicable record, either by the court's own staff, or by putting
on the stand witnesses the veteran might bring in plus Government
witnesses to explain the rationale utilized by the medical experts of
the Government in arriving at their conclusion. This, of course,
becomes rather an involved procedure.
Mr. KORNEGAY. Now, Mr. Brickfield, your testimony has indicated
that you do not now apply formal rules of evidence.
Mr. BRICKFIELD. This is true.
Mr. KORNEGAY. And this is all to the benefit of the veteran. I n
this connection I would like to ask if it is not true that the informal
rules of evidence frequently result in consideration of evidence against
the veteran, and consequently work to the detriment of the veteran
rather than to his benefit ?
I n other words, by applying the informal rules of evidence it works
both ways or it is a double-edged sword ?
Mr. BRICKFIELD. Yes. But I think, Mr. Kornegay, and I would
like to bring you back to one of your earlier questions to me when
you pointed out that in developing a veteran's claim we also develop
unfavorable evidence. I would like to compare the situation to that
of a prosecutor back home, in your State, who has the duty of prosecut-
ing an accused. I n developing his case and in order to do justice,
he is bound to develop all facets of his case, not only the evidence
that will help his case against the accused but if possible information
that would exonerate a defendant. So also here we look at it with
a fair view and we develop the entire case. As I say, some evidence
falls in the category of being unfavorable and some or a lot of it falls
in the category of being favorable and we look at it in the light of
the entire record before us.
Mr. KORNEGAY. Well, of course, some of the evidence you consider
would come within the exception to the hearsay rule, but most of the
evidence that is considered in these claims is evidence that an ordinary
court of law might preclude by the hearsay rule, is^that true?
• Mr. BRICKFIELD. I think that is generally true. Hearsay evidence
would not be admissible in a court of law, that is right.
Mr. KORNEGAY. That, of course, pertains to both the favorable and
unfavorable ?
• Mr. BRICKFIELD. T h a t is very true. We at the Veterans' Adminis-
tration take, for example, a doctor's statement based on the doctor's
memory of when he examined a patient. Now, I think if you get a
Court of Veterans' Appeals, the VA will in time change over to what
I would call the best evidence rule. I n other words, don't take the
doctor's letter, but require the submission of the doctor's records. W e
probably would no longer take summaries of what happened at a hos-
pital but would require the hospital records to be submitted and this is
2048 JUDICIAL REVIEW OF VETERANS' CLAIMS

narrowing of the field of evidence t h a t I think would develop in time.

I n other words, on the basis t h a t a claim might go to the court of
Appeals, we would require a record that would be acceptable in the
court of appeals.
Mr. KORNEGAY. In your testimony you raised several of numerous
objections to the establishment of the Court of Veterans' Appeals.
Let me ask you if any of these objections which you have raised
now exist in the present system of judicial review of the life insurance
claims.
Mr. BRICKFIELD. It is hard for me to give a ready answer, without
some thought but I think one can distinguish the field of life insurance
claims on the ground that in a life insurance claim you have a one-
time shot. I n other words, the question is, "Who is the beneficiary,"
and you decide it and it is settled forever and that ends it. Whereas
in the field of compensation, especially when you are in the rating
area of disability, changes in ratings is something that comes up over
and over again.
Mr. KORNEGAY. Pardon me for interrupting, but let me ask this:
Do you not have the same thing in the question of whether an injury
is service connected or not service connected ?
Mr. BRICKFIELD. That is right.
Mr. KORNEGAY. It, either is or is not.
Mr. BRICKFIELD. That is right. B u t you don't always stop there
in compensation and pension.
Mr. KORNEGAY. I can understand and appreciate it in the area of
ratings and some of these other areas. But let me express to you
another thought or ask you another question.
I s it in your opinion a wise thing to have that fundamental ques-
tion decided once and for all; that is, whether or not an injury or
ailment is service-connected ?
Mr. BRICKFIELD. Yes, I think it is and I hope we could decide it
once and for all. I take the view, Mr. Kornegay, that a man gets a
fair hearing before the Veterans' Administration and he does get due
process of law and that we do decide these things rightly. But, we
don't close the door on him forever.
Mr. KORNEGAY. Are you talking there about the question of whether
or not an injury is service-connected?
Mr. BRICKFIELD. Even in the area of whether or not an injury is
service-connected.
Mr. KORNEGAY. That is my point. Would it not be. better for the
veteran, the VA, and for the public, if that question can be finally
adjudicated.
Mr. BRICKFIELD. I t would be better, I think, for the public, but not
for the denied veteran, because at some later date he may come u p
with some friend with whom he was in the service back years ago who
remembers a particular incident bearing on the injury and it's nice
for the veteran at this late date, to be able to reopen the claim on this
particular question. I always think it is good to keep the door open,
Mr. Kornegay.
Mr. KORNEGAY. This, of course, gets into a philosophy and I don't
know that this is an appropriate question but in the case of service-
connected disability and compensation, is it your feeling or philoso-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2049

phy that it is a gratuity or is it a right that the veteran has based

on what we might say is an implied contract?
Mr. BRICKFIELD. Speaking personally, Mr. Kornegay, I think that
it is not good to use the term "gratuity." If Congress creates the
right, then a man has a legal right and although the Supreme Court
has said that "Compensation and pension are based on gratuitous
concepts," my feeling is that if Congress gives you the right to re-
ceive compensation and the right to receive pension, then they are
legal rights, legally enforcible.
Mr. KORNEGAY. You say the Supreme Court has said that compen-
sation is a gratuity ?
Mr. BRICKFIELD. I know the Supreme Court said pension was a
gratuity. I could stand corrected as to whether or not compensation
was included.
Mr. KORNEGAY. I agree with that, but I am asking now about com-
pensation for service-connected disabilities.
Mr. STANCIL. T h a t was at the time the word "pension" was used
as all-inclusive to include both. The distinction as we know it now
between compensation and pension arose a few years ago. I think
this is a matter of semantics and you can attach different meanings
to the word "gratuities" but in the Supreme Court decision it was
used in a strictly legal sense, that it was a gratuity conferred by Con-
gress, with the right of Congress to take it away, and was not an irrev-
ocable contract right and in this sense the terms have been discussed
in court decisions.
Mr. KORNEGAY. Getting back to the question of life insurance in a
judgment rendered by the U.S. court on a suit for national service life
insurance, it is res ad judicata as to the parties to the suit?
Mr. BRICKFIELD. I believe it is, provided the facts don't thereafter
change.
Mr. KORNEGAY. Let me ask you about this at the top of the page,
page 4. I t says:
In effect the Board is in a position of an independent court insofar as weighings
the merits of individual cases and determining their proper disposition under
VA regulations, instructions, and Administrator's decisions. The Board is deal-
ing solely with cases which have already been denied by the agencies of original
jurisdiction and their whole orientation is to determine whether there is a way
to grant the case.
Now, aren't these agencies, or so-called agencies of original juris-
diction, in fact no more than subordinate officers of the Veterans' Ad-
ministration and, of course, subject to the Administrator of Veterans'
Affairs?
Mr. BRICKFIELD. Yes, sir: but they are to be distinguished from the
Board of Veterans Appeals. They are not subordinate officers of the
Board of Veterans Appeals.
Mr. KORNEGAY. What, if any, relationship exists between the agen-
cies of original jurisdiction and the Board of Veterans Appeals?
Mr. BRICKFIELD. There is no real relationship except in appellate-
procedure, as I understand it, Mr. Kornegay.
Mr. KORNEGAY. N O policy relationships ?
Mr. BRICKFIELD. Absolutely none at all.
Mr. KORNEGAY. Is there ever a communication between the two with
reference to claims ?
2050 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. STANCIL. Communication in what sense ?

Mr. KORNEGAY. Other than the official record, I mean.
Mr. STANCIL. If we remand a case, we are instructing the regional
office to take certain action and to consider the case again and to re-
turn it to us if they continue denial of benefits sought on the appeal.
There would be communication if procedural infractions had been
committed by the field office. Let me back up and give you a quick
picture of appellate procedure and the role that the board plays in-
seeing that the procedures that are carried out.
First-of all, I could give you an organizational chart.
(The chart referred to follows:)

ORGAMZATtOM Of
V£T£RAM AOMWWRATIOt/

BOARD OF
ADMINISTRATOR - VETERANS APPEALS

DEPARTMENT OF DEPARTMENT OF DEPARTMENT OF

MEDICINE & SURGERY VETERANS BENEFITS INSURANCE

Mr. STANCH.. The Veterans' Administration is divided into three

main departments and the regional offices we are speaking of fall under
the Chief Benefits Director who heads this department [indicating].
Some appeals come from the Department of Insurance and a very
limited number from the Department of Medicine and Surgery.
The Board of Veterans Appeals sits up here [indicating], the law
specifically providing that the Chairman is responsible directly to the
Administrator. We have no personnel in field offices and no control
•over their activities except as we decide individual appeals. We do
prescribe the procedures for the filing of the appeal, for insuring that
t h e service organization representative at the field office level gets
a chance to make a presentation on the case before it comes to Wash-
ington, that a hearing is accorded the man in the field office and a
transcript put in the record if he is unable to travel to Washington to
appear before the Board itself.
There are things of this sort and entirely of a procedural nature.
So •we will correspond with a field office to police those things. Noth-
ing, as Mr. Brickfield said, is in the adjudicative policy area or in any
other way controlling the actions by the people in the field office.
Mr. BRICKFIELD. There is no line authority, Mr. Kornegay, between
t h e Board of Veterans A ppeals and the field office.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2051

Mr. KORNEGAY. Would you liken it to the situation of the trial court
and the supreme court in an ordinary state ?
Mr. BRICKFIELD. I think you could.
Mr. STANCIL. I think, if I may, sir, it is fairly similar to the British
appellate tribunal except I am responsible to the Administrator of
Veterans Affairs instead of being completely outside the Veterans'
Administration. Other than that, it is much the same.
Mr. KORNEGAY. Now, in the next to last paragraph on page 5 of
your statement, Mr. Brickfield, you relate that the number of sections
of the Board have been increased from 11 to 14 and the time spent on
consideration of each case may increase from about 90 minutes to about
115 minutes. I s it true that these time estimates include the total
time of all three members of the Board ?
Mr. BRICKFIELD. I would ask Mr. Stancil to respond.
Mr. STANCIL. Yes, sir; that is the time in the Board section. I t
'does not include the time of the back-up, legal or medical, consultant
staff in researching or preparing the tentative decision, the opinion
writers, so to speak.
Mr. KORNEGAY. W h a t I am getting at, actually one-third of that
t i m e is the actual time spent by the entire Board ?
Mr. STANCIL. I t would work out that way mathematically. F r e -
quently they discuss it as a Board action. Of course that is an aver-
age. T h e more difficult cases take considerably longer. The cases
t h a t are not too involved take less time. This is an average figure.
Mr. KORNEGAY. On page 5, Mr. Brickfield, in connection with the
Hast paragraph at the bottom, it says:
Let me emphasize that this is after initial research and preparation of tentative
'decision by the consultant staff, which, for the average case, is about 4 hours.
Let me inquire a little bit as to how that works. That is the prepara-
tion of a tentative decision by the consultant staff. Does that mean
that the consultant staff prepares, in advance, a decision in the case
:and submits it to a section of the Appeals Board ?
Mr. STANCIL. I n many cases, yes, sir; these are, to make a compari-
son, similar to the opinion writers for a judge.
Mr. KORNEGAY. T h a t is done after the case is heard, is it not, Mr.
iStancil, like one of the court justices who employ the use of reference
.•assistants and writers in preparing opinions ?
Mr. STANCIL. Yes. I n many of these cases where there has been a
"hearing before the Board, the Board members will instruct them and
state just what they want.
Mr. KORNEGAY. Does this mean, in many instances, that the case
Tias been decided before the Board hears it ?
Mr. STANCIL. N O , sir; it does not. I t means that a consultant be-
forehand, who has more time available than the Board, has done what
research he feels is necessary and has prepared something for the
Board to consider. This can be either rejected by the Board and the
•consultant told to prepare it in an opposite way or it can be modified
or accepted.
Mr. KORNEGAY. I realize that they could. Would it not be a far
better procedure and I appreciate the fact the Board members may not
I)e able to personally dictate the decision, but would it not be far bet-
t e r t h a t the decision should be dictated after the hearing or after the
2052 JUDICIAL REVIEW OF VETERANS' CLAIMS

procedures are had, rather than prior to it ? This is realizing we are

all human and we are all subject to suggestions and that sometimes
suggestions or influences have bearings on our subconscious. Would
it not be a far better procedure to have a tentative decision which is
prepared by the consultant staff subsequent rather than prior to the
hearing?
Mr. STANCIL. You are using the word "hearing" in a different sense
t h a t the hearing we have before the Board on appeal, which is merely
an opportunity to appear and present argument. You mean to be
actually reviewed and considered by the Board. This would certainly
affect the size of the Board and the budget that would be required.
As a practical matter, my experience has been that the Board members
have no reluctance to modify or change.
I n other words, they approach each case, go through it thoroughly
and decide what they want to do; and if the tentative decision coincides
with it, they will approve it and, if not, they will order that it lie
revised.
Certainly there is substance, as a matter of general principle for the
proposition that you advanced.
Mr. KORNEGAX. I t would require more personnel, and it would be at
greater expense by utilizing the service of the consultant staff in
writing the opinions after the hearing and not prior to it ?
Mr. STANCIL. The possible objection occurs to me, if each Board
member reviews the case and decides what is to be done and turns it
over to an opinion writer to carry this out, it will necessarily be several
days before it gets back to him. The volume of cases is such that the
details of the case, other than the conclusion, would perhaps be for-
gotten and it would be necessary to review this case again. I don't
think it would necessarily double the size of the Board but I think it
would increase it.
You see, not only is the conclusion important, but also how you
support that conclusion and the information you convey in the deci-
sion, which must be factually accurate, complete and reasoned, and
this is why we would require the second review I spoke of.
Mr. KORNEGAX. Off the record.
(Discussion off the record.)
Mr. KORNEGAX. On the record again.
I raised the point that it is the appearance of it and I am concerned
over not whether they are right or wrong in the decision in this in-
stance, but in the appearance and the feeling and attitude that a
claimant would.have, oyer knowing..that the decision in his case has
already been written before he and his representatives appear before
the Board.
Mr. STANCIL. Mr. Kornegay, I want to make sure that the record
is clear about this word "hearing." W e provide hearing rights in
the adjudication procedures and in appellate procedures in the Vet-
erans' Administration, but this hearing is not the point at which a
decision is made. The hearing, as we use the term, is the opportunitj 7
for the claimant or the case advocate to appear and. to present argu-
ment and present the testimony of witnesses. This then is transcribed
and is placed in the record. A decision is made by the Board sitting
in its Board room on a review of the entire record including the tran-
script of the hearing.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2053

Mr. KORXEGAY. Subsequent to that hearing or an opportunity to

be heard ?
Mr. STANCIL. Yes; subsequent to the hearing or the opportunity to
be heard. Now, as to those cases where claimants or case advocates
appear personally at a formal hearing before a section of the Board
of Veterans Appeals, then our procedure calls for that Board, which
has had an opportunity to see and hear the man, to take the case first
and to decide what is to be done and then call in an opinion writer and
instruct him what to do. I t is the case that comes in without the
personal hearing that, because of the large volume, has a tentative
decision prepared on it first.
Mr. KORXEGAY. Do I understand you to say in those instances where
a claimant and his representatives appear before the Board in Wash-
ington that there is no tentative decision written by the consultant
staff until after that proceeding is held ?
Mr. STAXCIL. That is right.
Mr. KORXEGAY. How do you know in fact whether or not the
claimant or some representative will appear?
Mr. STAXCIL. Because in the appeal itself he must ask for the hear-
ing. The appeal form has a printed explanation of the law and his
rights and he indicates whether he desires a hearing, and, if so,
whether lie desires a hearing before the Board in Washington or
whether he wants to appear in a field office.
Mr. KORXEGAY. And in every case where the claimant indicates
that he desires a hearing, whether he appears or not, it is scheduled?
Mr. STAXCIL. I t is scheduled.
Mr. KORXEGAY. The tentative decision by the consultant staff is not
made until after the time has elapsed for appearance?
Mr. STAXCIL. T h a t is correct. You could have an isolated case
where it proceeded to the point of tentative decision when the request
for hearing is first received, but that would be the only situation. If
the request is taken on the outset, no action is taken until the claimant
is heard and then the Board receives the transcript of the hearing and
decides what is to be done, and then calls in the opinion writer.
Mr. KORXEGAY. Now, Mr. Brickfield, of course veterans' benefits
are based entirely on statutory law and regulations of the Adminis-
trator which are promulgated pursuant to the statutory authority.
Would you please direct my 'attention to any provision from any of
the bills under consideration which would apply to the proposed
court any different body of law than that applied to the Board of Vet-
erans Appeals ?
Mr. BRICKFIELD. I cannot draw your attention to any, Mr. Chair-
man, and I think your statement is accurate. The only comment I
would make is that today when the Board of Veterans Appeals hands
down a decision, based on let us say a regulation, and the Adminis-
trator feels that the regulation, in the light of this decision, should be
changed, he has the unhampered authority to write a new regulation,
whereas if we had a court of appeals handing down a similar deci-
sion, I think there would be a hesitancy on the p a r t of the Adminis-
trator to make changes in the regulations.
Mr. KORXEGAY. W h y that hesitation, Mr. Brickfield ?
2054 JUDICIAL REVIEW OF VETERANS' CLAIMS

Mr. BRICKFIELD. Because it is an appellate court decision.

Mr. KORSTEGA Y. As long as it is in line ? Or I will p u t it this way':
As long as it is not contrary to the decision.
Mr. BRICKFIELD. I will put it this way. The Administrator would
be somewhat hesitant to change a regulation which would have the
effect of overcoming a court decision. T h a t is the point.
Mr. KORNEGAY. Of course, I can realize any reluctance in that rield,.
but in many, many instances or in many, many situations, aren't there
situations where judicial review is now provided by law. the admin-
istrative agency still has the authority to promulgate administrative-
regulation ?
Mr. BRICKFIELD. Right.
Mr. KORNEGAY. Have they run into, within your knowledge, any
difficulty in exercising that authority compatible with the decisions of
the court ?
Mr. BRICKFIELD. I have no personal knowledge of it except I would
draw your attention to the fact that when the Supreme Court hands
down a decision interpreting a statute, Congress has the right to write
a new statute. As a practical matter, unless the Supreme Court says.
that the law ought to be changed, it is somewhat difficult to get a new
Federal statute overcoming the Supreme Court decision.
Mr. KORNEGAY. Of course, the Veterans' Administration would"
stand in the same position as any of the other administrative agencies
to approach Congress on having a statute enacted to correct any in-
equities or bad situations that arose as a result of the decisions would
it not?
Mr. BRICKFIELD. That is right. B u t we are here put in the anomo-
lous position of having the Administrator of Veterans' Affairs, in
effect, sitting on top of the Court of Appeals because if he disagrees-
with the court decision he can change the regulation. I do not think
he would wish to do that. My point is he would be very hesitant.
Mr. STANCIL. Perhaps I could give you a specific illustration of the
sort of thing Mr. Brickfield means. I think we can all agree that p r o -
ceedings by a Court of Veterans Appeals cannot be limited strictly
to factual determinations but they would have to interpret the l a w
as well, and sometimes the question of validity of a regulation might
be before the Court of Veterans Appeals. I have in mind a certain
regulation concerning income of a pensioner. There is a statutory bar-
to pensions if income exceeds certain levels. A case arose where a
widow pensioner had to sell her home because of condemnation pro-
ceedings for a highway. The entire proceeds of this home were rein-
vested in another home for her residence. Nevertheless, under the-
regulations as they existed this was regarded as income for the partic-
ular year and barred the pensioner that particular year.
The Board of Veterans Appeals felt that some change could be jus-
tified in this area. I am sure we were not alone in this. Perhaps peo-
ple in the Department of Veterans Benefits were thinking along the-
same line as cases arose. A recommendation was made and the regula-
tion was revised somewhat along the lines of the income tax rule
exempting a certain portion, if not all, of the proceeds of the sale o f
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2055

a home if reinvested within a specified period of time in another

home.
Perhaps Mr. Brickfield's point is that if the earlier regulation had
been passed on by the court as the proper meaning of the law, the
Administrator's authority to liberalize his regulation would have been
curtailed. The Court of Veterans Appeals decisions that the law
means thus and thus as to income or other questions would preclude
rhe Administrator from changing regulatory interpretations.
Mr. KORNEGAY. An}' questions, Mr. Downer ?
SUBCOMMITTEE COUNSEL. N O , sir.
Mr. KORNEGAY. Any questions, Mr. Patterson?
COUNSEL. N O , sir.
Mr. KORNEGAY. The hour is past 12 already and as far as that goes,
that completes the questions that I have to ask.
I want to say I sincerely appreciate your being here and the in-
formation that you have given to the subcommittee and I also want
to say that at times during the course of this hearing some of us on
the subcommittee have indicated rather strong personal feelings about
this legislation, but I certainly want to say, on behalf of myself, and
I feel I can say it on behalf of the other members of the subcommittee,
that we are interested in trying to do the right thing. We are inter-
ested in getting the viewpoint of all interested parties involved, such
as the Veterans' Administration, the veterans' organizations, the other
court officials and anybody else who has an interest in this matter.
We certainly hope after getting all the information and carefully
studying it and analyzing it, that whatever we come .up with will be
to the benefit of the veterans and the public of this country.
I do not want you to feel that you have been up here testifying to
a stacked deck of cards or to a court that has already written its op-
inion. I feel confident that of the many bills which we have before
us, if one comes out, it will probably be rewritten and changed in
many ways.
I n closing, I will just say thanks so much for being here with us
and giving us the benefit of your thinking.
Although there are areas where we may disagree, I am sure we
can disagree without being disagreeable and recognizing the fact that
all of us are trying to do what we think is in the best interests of the
veterans and of the public.
Mr. BRICKFIELD. Mr. Kornegay, under the provisions of the bill,
.as I read it, the Department of Justice.would have a substantial role
insofar as the Government is concerned and I am sure that it, if
requested, would have views to submit on this legislation.
Mr. KORNEGAY. I appreciate your mentioning that, Mr. Brickfield
and I assure you we will give consideration to it.
Thank you so much.
I n connection with the bill, H.R. 852, the committee has received
the preliminary report on the independent medical expert survey and
without objection that interim report will be inserted at this point
in the record with the body of the report remaining in the file of the
committee.
2056 JUDICIAL E E V I E W OF VETERANS' CLAIMS

(The material follows:)

V E T E R A N S ' ADMINISTRATION,
D E P A R T M E N T OF VETERANS B E N E F I T S .
Washington, D.C., March 5, J.%2.
Hon. O L I N E. TEAGUE,
Cairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.
DEAR MR. C H A I R M A N : T h e s t u d y conducted in accordance with t h e agreement
between members of the staff of t h e House V e t e r a n s ' Affairs Committee a n d rep-
r e s e n t a t i v e s of t h e Veterans' A d m i n i s t r a t i o n to conduct a study of selected cases
involving difficult or u n u s u a l medical questions p r i m a r i l y in t h e association
of one disorder to another has progressed to t h e point, w h e r e an interim report
m a y be made.
T h e cases were selected from those encountered incident to requests for ad-
m i n i s t r a t i v e review and adivsory opinions in t h e compensation and pension
service a n d in t h e Board of V e t e r a n s Appeals. Each case selected for inclusion
in t h e s t u d y w a s individually approved by t h e members of t h e staff of t h e House
V e t e r a n s ' Affairs Committee.
T h e purpose w a s to show comparison between different medical authorities.
T h i s is accomplished by submitting t h e claims records to an eminent specialist
not connected w i t h the V e t e r a n s ' Administration in the field of medicine in-
volved, after t h e Chief Medical Director had rendered an opinion. In order to
obtain a n i m p a r t i a l opinion, any m a t e r i a l which would indicate to the independ-
e n t medical expert the n a t u r e of t h e Chief Medical Director's opinion w a s first
removed from t h e claims file.
An interim r e p o r t on t h e cases completed u n d e r this study is attached. I t
shows t h e n a m e s a n d claim numbers of 21 cases and a s u m m a r y of the respective
medical opinions. A photocopy of each of t h e opinions is also included.
A f u r t h e r r e p o r t will be furnished a s soon a s i t is possible to complete nine
additional pending cases. Incidentally, a listing of these is also a t t a c h e d for
your information. I n t h e absence of a request t h a t additional cases be included
in this study, no f u r t h e r i n t e r i m r e p o r t s a r e contemplated.
Very t r u l y yours,
P. N. B R O W N S T E I N ,
Chief Benefits Director.

INDEPENDENT MEDICAL EXPERT STUDY

Completed cases a s of F e b r u a r y 28,1962

A. SUBSTANTIAL AGREEMENT BETWEEN CHIEF MEDICAL DIRECTOR AND IME

1. Active service May 1953 to May 1955

Question :
(a) T h e correct diagnosis of the cardiovascular condition found in J a n u -
a r y 1955.
(o) T h e correct diagnosis of t h e cardiovascular condition found on ex-
a m i n a t i o n in J u n e 1955 a n d March a n d October of 1960.
I s s u e : Severance of service connection for cardiovascular condition.
CMD opinion: No cardiovascular disease present in J a n u a r y or J u n e 1955 or
in M a r c h 1960.
I M E opinion : Preservice X-ray contains findings indicative of probable pri-
m a r y p u l m o n a r y hypertension and t h e evidence does not show increased dis-
ability in service (May 1953 to May 1955).
2. Active service from September 19J/2 to December 19^5
Question:
( a ) Does t h e evidence establish a m a l i g n a n t condition in service? If so,
when, a n d w h a t is t h e diagnosis?
(6) Does t h e evidence establish a m a l i g n a n t genito u r i n a r y condition after
service ? If so, when, a n d w h a t is t h e diagnosis ?
(c) W a s t h e diagnostic impression by biopsy on October 21, 1946, of
epidermoid papillary carcinoma correct? If not, w h a t w a s t h e correct
diagnosis?
(d) I s t h e veteran's m a l i g n a n t thymoma associated with or related to the
bladder papillomas?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2057

(e) In response to the above, will you also please indicate the basis for
each conclusion? :.'•:-
Issue: Severance of service connection for bladder carcinoma.
GMD opinion: Evidence does not establish a malignant condition in service
nor since.
IME opinion: The diagnosis in and after service is noninfiltrating papilloma
of the urinary bladder, considered potentially malignant or definitely precan-
cerous.
CMD comment: Noninfiltration papillomas were present in service- and while
they might be potentially malignant they could not be classified as actually
malignant in this case.
3. Active service from November 1948 to May 1946 and June to September 194"/
Question:
(a) What is the correct diagnosis?
(6) Did the condition have its inception during either period of his
service?
Issue: Service connection for bronchial asthma.
CMD opinion: Asthma is subtantiated during second period of service (June
to September 1947), but date of inception not determined. (First period of
service extended from November 1943 to May 1946.)
IME opinion: Correct diagnosis is bronchial asthma supported by record of
symptoms and physical findings typical of the disease in August 1947. He can-
not say exactly when it arose.
4. Active service from May 1914 to September 1920; December 1920 to August
1921 and October 1942 to December 1943
Question:
(«) Did the veteran have an organic heart disease during service hos-
pitalizations in February-March 1943, and November-December 1943?
(Z>) If not, what should have been the correct diagnostic classification?
(c) Did the veteran have an organic heart condition subsequent to serv-
ice, and if so what is the earliest date and diagnosis on that date?
Issue: Severance of service connection for cardiac symptoms.
CMD opinion: No organic heart disease in service or since. The correct diag-
nosis of symptoms requiring hospitalization in service was conversion reaction.
IME opinion : There is no evidence of organic heart disease. He feels the true
diagnosis is chronic conversion reaction.
5. Active service from September 1941 to October 1941
Question:
(a) Does the veteran have a residual disability from the radioactivity
exposure in service? If so, show which disabilities resulted from this
exposure.
Issue: Service connection for residuals of radioactivity exposure.
CMD opinion : No residual disability shown.
IME opinion: No evidence of residuals of radioactivity exposure.
6. Active service from December 1948 to September 1945
Question:
(a) Do you concur in the diagnosis of psychoneurosis, anxiety state, and
neurocirculatory asthenia, returned during active service? If not, what in
your opinion was the correct diagnosis?
{b) Is there any valid basis for medically concluding that the symp-
tomatology reported during service was in fact a beginning manifestation
of organic cardiovascular disease?
Issue: Service connection for hypertensive coronary disease.
CMD opinion : Diagnoses of psychoneurosis, anxiety state; and neurocirculatory
asthenia made during active service are correct, Symptomatology reported dur-
ing service is not considered to be a beginning manifestation of organic cardio-
vascular disease.
IME opinion: There is no valid basis for concluding medically that the
symptomatology reported during service was a beginning manifestation of organic
cardiovascular disease.
(Denied by BVA July 1958.)

S0OS2—62 22
2058 JUDICIAL- REVIEW OF VETERANS' CLAIMS.

7. Active service from March 1948 to January 1946

Question:
(a) Has clinically active tuberculous chorioretinitis been demonstrated
since October 10,1949, and, if so, the date or dates of activity and arrest?
Issue: Evaluation of service-connected tuberculosis chorioretinitis.
• CMD opinion: Dates of activity: November 1954 and June 1960.
Dates of inactivity: February 1955 and January 1961.
IME opinion: Dates of activity: October 28, 1954, through January 18, 1955;
June 3,1960, through July 12,1960.
8. Active service from February 1918 to June 1919
Question:
(a) Is there any reasonable basis, without resort to pure speculation,
to support a relationship between the shrapnel wounds, left elbow, sustained
in World War I, and osteogenic sarcoma, left humerus and osteosarcoma,
left glenoid,' first found in our Veterans' Administration hospital, Pittsburgh,
in February 1960?
Issue: Service connection for sarcoma as cause of death.
' CMD opinion: No relationship between shrapnel wounds of the left elbow and
osteogenic sarcoma of the left humerus and glenoid.
IME opinion: The sarcoma is in no way related to the left elbow injury in
service in October 1918.
9. Active service from March 1943 to January 1946
Question:
(a) The correct diagnosis of the cardiovascular condition found during
August 1946.
(6)If no organic cardiovascular condition was evident during August of
1946 is one shown subsequently? If so, on what date or dates? What is the
correct diagnosis on that date or dates?
Issue: Service connection for heart disease with coronary occlusion and
anginal syndrome.
CMD opinion: Correct diagnosis of cardiovascular symptoms in August 1946
is psychoneurosis, conversion reaction, chronic. No organic cardiovascular con-
dition was shown subsequently.
IME opinion: Correct diagnosis of cardiovascular symptoms in August 1946
probably neurocirculatory asthenia and organic cardiovascular condition not
indicated subsequently.
10. Active service from January 1941 to September 1945
Question: (a) Are the symptoms shown in service etiologically related to the
lymphosarcoma diagnosed in August 1958; if not, what is the date of the earliest
manifestation of lymphosarcoma ?
Issue: Severance of service connection for lymphosarcoma.
CMD opinion : Symptoms shown in service are not etiologically related to
lymphosarcoma first manifested in 1958. (The veteran had active service from
January 1941 to September 1945.)
IME opinion: Lymphosarcoma, starting in the stomach, first became sympto-
matic early in 1948. It is a very slow growing tumor and now shows no evi-
dence of distant metastasis.
OMD comment: Lymphosarcoma not diagnosed until 1958. Establishment of
a specific date of onset would be pure speculation, but a 2-year period before its
diagnosis would be a generous allowance of time in considering the onset of
malignancy.
11. Active service from October 1950 to December 1952
Question: (a) Is carcinoma of the veteran's right parotid gland due to and
proximately the result of X-ray treatments for his service-connected disability
of otitis externa?
Issue: Service connection for carcinoma of the right parotid gland.
CMD opinion: X-ray treatments administered in 1956 for service-connected
otitis externa have no causal relationship to the muco-epidennoid carcinoma of
the right parotid gland.
IME opinion: Carcinoma of the right parotid gland not due to X-ray treat-
ments for service-connected otitis externa.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2059

12. Active service from. July 1943 to May 1946

Question: (a.) What was the probable cause of the veteran's cerebral hemor-
rhage on January 21,1953?
Issue: Service connection for cerebral hemorrhage.
CUD opinion: Cerebral hemorrhage was a manifestation of leakage from a
congenital malformation of the blood vessels of the brain.
1MB opinion: Aneurysm in 1953 was congenital in nature and not due to pre-
vious or chronic infectious process or from sulfa drugs administered for treat-
ment following an attack of scarlet fever and middle ear infection in service.
13. Active from February to April 1942
Question: (a) Does the veteran have an organic neurological disability? If
so, what is the diagnosis, when was it first manifested, and what effect, if any,
did the administration of spinal anesthesia (novacaine) have?
Issue: Service connection for adhesive arachnoiditis.
CMD opinion : The veteran has an organic neurological disability diagnosed
adhesive spinal arachnoiditis. It was first manifested in 1942 and the spinal
anesthesia administered in service was, in all probability, the precipitating agent.
IME opinion: He feels that the veteran has an organic neurological disability
and that the diagnosis is adhesive arachnoiditis. He believes that a causal re-
lationship with the administration of spinal anesthesia in service cannot be
denied.
(Latest denial by BVA, November 1960.)
14- Active service from, May 1943 to August 1945
Question: (a) What is the correct neurological diagnosis?
Issue: Evaluation of service-connected neurological disorder.
CMD opinion: The correct diagnosis of this condition is cervical adhesive
arachnoiditis, etiology undetermined. (He was medically discharged from
service because of encephalopathy, and this diagnosis was continued on his first
two VA examinations. However, on the official examination of April 1960
encephalopathy was reported to be in complete remission. He has appealed the
reduction to 0 percent.)
IME opinion : The neurological disorder suffered in service was very likely
an arachnoiditis and pachymeningitis, due to a preservice syphilitic infection,
but aggravated by service.
15. Arctic service from April 1944 to November 1945
Question :
(a) Is pulmonary tuberculosis shown on induction film?
(6) If so, is lesion primary or reinfection type ?
(c) If induction film is negative, is pulmonary tuberculosis shown on
comparative study of subsequent service film?
Issue: Service connection for pulmonary tuberculosis.
CMD opinion: Pulmonary tuberculosis is not shown on the induction film or
on comparative study of subsequent service film.
IME opinion: There was no change from the appearance of the chest at the
time of induction to the time of discharge.
16. Active service from September 1942 to June 1943
Question:
(a) Do you concur that coronary and/or arteriosclerotic heart disease
preexisted service?
(6) Do the service medical records show coronary occlusion or patho-
logical coronary or cardiovascular changes?
Issue: Restoration of service connection for coronary and/or arteriosclerotic
heart disease.
CMD opinion: The evidence does not substantiate a diagnosis of coronary or
arteriosclerotic heart disease prior to service. The record does not show coro-»
nary occlusion or pathological coronary or cardiovascular changes in service.
IME opinion: It is probable that the veteran had coronary heart disease with
angina pectoris when he entered service. The service medical records do not
show coronary occlusion or pathological coronary or cardiovascular changes.
' (Denied by BVA March 1960.)
2060 JUDICIAL, REVIEW OF VETERANS' CLAIMS

17. Active service from January 1943 to February 1946

Question:
(a) Was the partial spontaneous pneumothorax, right, shown in service
causally or etiologically related to inactive pulmonary tuberculosis? If so,
please furnish the basis for your opinion.
(6) If not, what was the nature of the underlying disease entity which
caused in service the partial spontaneous pneumothorax? Please also fur-
nish the basis for your opinion.
Issue: Service connection for pulmonary tuberculosis.
CMD opinion: Partial spontaneous pneumothorax, right, in service was not
related to preservice inactive pulmonary tuberculosis. Tuberculosis is rarely
a factor, and, if it is, the relationship is usually clear with active tuberculosis,
which is not the case here. The nature of the underlying disease is undeter-
mined but was probably the result of a ruptured subpleural emphysematous
bleb.
IME opinion: The right partial spontaneous pneumothorax suffered in service
should be attributed to the evolutive anatomical changes of an inactive apical
or cicatricial tuberculosis, undoubtedly existing prior to service.
CMD comment: In view of a long series of spontaneous pneumothoraces with
prompt and complete recovery and in the absence of any clinical manifestation
of active pulmonary tuberculosis, it is still our opinion that the partial spon-
taneous pneumothorax, right, in service was not related to inactive pulmonary
18. Active service from November 191$ to January 1946
Question: (a) Is the diagnosis (chronic anxiety reaction with hyperventila-
tion syndrome and labile hypertension) made by the cardiac consultant on the
examination of December 13, 1960, correct and if not what is the correct di-
agnosis?
Issue: Service connection for hypertension and hypertensive heart disease.
CMD opinion: Diagnosis of chronic anxiety reaction with hyperventilation
syndrome and labile hypertension is correct.
IME opinion: Present cardiovascular disability directly related to hyper-
tension in service. Besides his cardiovascular symptoms he has suffered from
a chronic state of tension and anxiety. (He is service connected for anxiety
reaction.)
(Remanded by BVA September 1960.)
B. CMD A N D I M E I N SUBSTANTIAL DISAGBEEMENT

1. Active service from November 1942 to August 194S

Question: (a) Whether the neuritis of the legs and impotency found during
hospitalization from December 30, 1946, to June 19, 1947, reasonably can be
attributed to the spinal anesthesia administered April 1, 1943.
Issue: Service connection for neuritis of legs and impotency.
CMD opinion: The neuritis of the legs and impotency found during hos-
pitalization from December 30, 1946, to June 19, 1947, cannot be reasonably at-
tributed to the spinal anesthesia administered in service on April 1, 1943. .
IME opinion: It is his best judgment that the record supports the diagnosis
of a post-spinal anesthetic arachnoiditis because his problems developed follow-
ing this procedure.
CMD comment: No new evidence has been brought forward to warrant any
change in the previous opinion. The neuritis of the leg and impotency cannot be
reasonably attributed to the spinal anesthesia administered in service.
2. Active service from June 1943 to November 1945
,. Question : . . . - -
,"•' (a) What is the correct diagnosis or diagnoses for the. veteran's res-
piratory condition in service ?-
(6) What is the correct diagnosis for his respiratory condition subse-
'-• ,. quent to service?
(c) When is the condition reported in (6) first shown?
(d) Is the chest disorder subsequent to service etiologically related to
the conditions treated in service?
(e) Do the service films of 1943 and 1945 show any abnormality or change?
If so, what is the nature of this abnormality or change?
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2061

(/) Do the films for the years 1939 through 1949 show any pathology or
change? If so, when and what is the nature of this pathology or change?
Issue: Restoration of service connection for bronchostenosis, also rated
bronchiectasis.
CMD opinion: Correct diagnosis in service was acute respiratory infections
with no demonstrable pulmonary residuals. The correct diagnosis for postserv-
ice respiratory condition is bronchostenosis and pleuritis, right, first shown in
July 1949. Postservice respiratory condition is not etiologically related to con-
ditions treated in service.
1MB opinion: The correct diagnosis for respiratory condition in service is
recurrent respiratory infection with pleurisy. The correct diagnosis for post-
service respiratory condition is bronchostenosis due to extrinsic pressure from
calcified lymph nodes; chronic inflammatory disease, right hilum, with partial
atelectasis and pneumonitis ; chronic pleuritis. These latter conditions were first
shown on X-ray of September 3, 1946, and are etiologically related to the condi-
tions treated in service.
CMD comment: The first concrete evidence of bronchostenosis and pleuritis
was in July 1949.
8. Active service from March to November 1941 and September '1944 to January
1946
Question:
(o) Did multiple sclerosis preexist entry into service in March 1941?
(b) If your opinion is no, when is multiple sclerosis first shown to exist
and if prior to the second period of service (September 1944 to January
1946), what effect did this tour of duty have on the course of the disease?
(c) If multiple sclerosis existed prior to service commencing in March
1941, what effect did each of the periods of service (March 1941 to Novem-
ber 1941) and (September 1944 to January 1946) have on the course of the
disease?
Issue: Service connection for multiple sclerosis.
CMD opinion: Multiple sclerosis did not preexist entry into service in March
1941. "If the opinion of the lay affiants may be considered evidentiary, multiple
sclerosis is first shown to exist in 1947."
1MB opinion : Multiple sclerosis did not preexist service. He believes multiple
sclerosis first developed in 1952 (second period of service terminated January
1946.)
(Denied by BVA November 1960.)
Mr. KORNEGAT. A n editorial appearing in the March 1 issue of Stars
and Stripes has been brought to my attention. If there is no objection
it will be inserted at this point in the record.
[National Tribune-Stars and Stripes, Thursday, Mar. 1, 1962]
EDITOKIAI/—JUDICIAL REVIEW
For the past week a subcommittee of the House Veterans' Affairs Committee
has been hearing testimony from veterans' organizations and other interested
parties on the provisions of H.R. 849. This is a proposal which would establish
a court of veterans' appeals separate and distinct from the Veterans' Adminis-
tration so that a veteran could carry his case to a court of last resort if he is
convinced that his claim is a just one.
The measure was introduced by Representative Olin Teague, chairman of
the House Veterans' Affairs Committee. The bill provides for a court of
veterans' appeals made up of five judges, all of whom must be attorneys, to
be appointed by the President and confirmed by the Senate. In addition, the
bill provides for the appointment of 50 Commissioners who would conduct
hearings, receive evidence, and furnish such reports as are requested.
Veterans' organizations are divided insofar as the merits of the legislation
are concerned. Both the Veterans of Foreign Wars and the American Legion
take the position that appointment of such a court violates the concept of a
single Government agency to dispense veterans' benefits. They say this method
has been successful for over 40 years and .they see no need for such a drastic
change at this time. It seems to us that this statement is open to contradiction.
I t is'th'e thinking of the opponents of the legislation that the VA should not be,
2062 JUDICIAL REVIEW OF VETERANS' CLAIMS

In the position of acting as judge and jury on the propriety of its own actions.
The Disabled American Veterans formerly opposed to the principle involved
have changed their position and now support the passage of the legislation.
Those favoring the measure believe that substantial economies could be effected
should the proposal become law. They point out that the reappeal of claims
which has become more frequent of late could be avoided. They stress the
experience in England where an independent appeals court was established
about 40 years ago which is said to function admirably and efficiently in support
of their position.
In our opinion, it seems only just and fair that a veteran should have a court
of last appeal. This is particularly true when it is realized that the decision
from which the veteran is appealing has been made by the VA and in the natural
course of human behavior they are loath to change their position on a decision
previously given.
It should be remembered that the welfare of some 22 million veterans, their
widows, children, and dependent parents will be affected by the passage of this or
similar legislation. We are confident the Veterans' Affairs Committee will give
serious and impartial consideration to the merits or demerits of this particular
proposal.
Mr. SATLOR. Mr. Chairman, for the record, if you do not object, I
would like to make a statement with reference to testimony received
from the American Legion witness during the course of these hear-
ings.
Mr. KORNEGAT. You may proceed, Mr. Saylor.
Mr. SATLOR. A t the meeting of the subcommittee on February 21,
Mr. Corcoran indicated that there were 43 pieces of legislation pending
before the committee, I assume, which he would like to get enacted.
I told him that there would be no non quid pro as far as that legisla-
tion was concerned on this judicial question. Mr. Miles Kennedy's
office (legislative director of the American Legion) advised there are
16 bills—5 of which were introduced after Mr. Corcoran spoke. I
cannot identify the number 43.
H.R. 100 provides for an amendment to the appropriate sections of
title 38 to authorize the payment of a burial allowance where the vet-
eran dies in a State home. The proposal is objected to on the p a r t of
the Veterans' Administration as being costly and setting a precedent.
H.R. 270 authorizes a program of assistance to the States in the con-
struction, expansion, and remodeling of future territorial homes not
to exceed $5 million in any one of 4 succeeding fiscal years. This bill
has been considered several times and has not received favorable atten-
tion. I cannot help but wonder, in this connection, at the lack of
enthusiasm and response on the part of the American Legion in con-
nection with House Joint Resolution 86 which authorized a grant of
money to the Legion or to any other veterans' organization for the
construction, operation, and maintenance of a rehabilitation center for
veterans with a guaranteed sum for upkeep. It, in effect, would per-
mit the Legion to have operated a home for needy and disabled vet-
erans on a pilot basis with virtually a guarantee of no loss. F o r some
reason the Legion has not seen fit to make any effort in this regard or
to show much interest in the legislation.
H.R. 884 is the bill sponsored by the Legion to increase the rates
of compensation for. service-connected disabled veterans. As Mr.
Corcoran well knows, this bill was considered before the Subcommit-
tee on Compensation and Pensions along with all other bills of this
nature. The bill costs approximately $428 million. The President
submitted a program authorizing an increase amounting to $67 mil-
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2063

lion. The committee approved an average 9.2 percent increase, and

cost slightly less than $88 million. T h a t bill has been bogged down
in a dispute involving the so-called Long rider, a bill totally unrelated
to the question of compensation and not germane since it involved the
reopening of national service life insurance. The compensation bill
probably would be law today if the American Legion had followed the
lead of the other three veteran organizations in requesting Senator
Long to delete the insurance rider from the compensation bill. Insur-
ance, it must be noted, involves non-service-connected benefits and able-
bodied individuals. The "comp" applies to the disabled. The record
speaks for itself.
H.R. 885 proposes to increase the rates of the old death compensa-
tion law authorized prior to the enactment of Public Law 881 of the
84th Congress. The cost estimate is $31 million. T h e American
Legion actively supported this later enactment and it is now proposed,
as I understand it, that the minimum rates under the old authority
be increased to the minimum under the new law. I n any event, this
committee has already reported H.R. 2417 (costing approximately
$7y2 million) authorizing an increase in the rates for children and
parents in the whole structure. I am sure it will be passed by the
House at an appropriate time.
The 1963 budget calls for $1,900 million for compensation. A 25-
percent increase, no matter how desirable, is unrealistic.
H.E. 886 is the pension bill sponsored by the American Legion and
generally provides for a liberalization in the income structure and
raises the pension rates slightly. This bill, too, was the subject of
hearings last J u l y when all non-service-connected pension legislation
was considered. The committee has been following the practice which
I thoroughly agree with of giving first priority to the service-
connected.
H.R. 1928 has to do with void and voidable marriages and is identical
in purpose to H.R. 5234 sponsored by the chairman of the committee
and which has been favorably reported by the Subcommittee on Com-
pensation and Pensions.
H.R. 1953 also was the subject of hearings during the pension
hearings last July. This bill would authorize a pension for non-
service-connected deaths without regard to whether or not his serv-
ice was honorable or whether the death was due to service.
H.R. 2020 is a bill which would fix midnight as the effective time
of discharge from the Armed Forces prior to J a n u a r y 1, 1957, the
effective date of Public Law 881 of the 84th Congress. I t is covered
by H.R. 6269 which was sponsored by the chairman of the committee
and became Public Law 87-102. I n this connection, it should be
pointed out that there is under consideration H.R. 7600 which revised
the effective date provisions on several veteran laws. Generally
speaking, they are of the liberalizing variety and this bill has been
under active consideration by the Veterans' Administration for several
months and it is my understanding that the Veterans' Administration
has counseled with the veterans' organizations on several occasions.
I hope that this bill can be enacted into law before the adjournment
of the 87th Congress.
2064 JUDICIAL REVIEW OF: VETERANS' CLAIMS

H.R. 2237 is another pension bill also the subject of hearings last
July, and is a liberalization of the existing criteria for determining
disability and ability to follow a substantial gainful occupation.
H.R. 4901 authorizes the payment of a burial allowance to the
family of a veteran where a discharge under dishonorable conditions
has been changed subsequent to the veteran's death to a type of dis-
charge which will permit the payment to be made. This bill has
been approved by the Subcommittee on Compensation and Pensions.
H.R. 10323 and the other bills described below were introduced
after Mr. Corcoran spoke. They authorize hospital and medical care
for wartime service-connected veterans who live abroad permanently.
They are identical to the bill introduced by the chairman, H.R. 9561,
which I believe will receive favorable consideration during this
Congress.
H.R. 10334 is a bill which would enlarge the exclusion from in-
come in determining eligibility for non-service-connected pensions.
H.R. 10360 makes all non-service-connected pensioners eligible for
treatment at an outpatient clinic of the Veterans' Administration.
Today such treatment is restricted to service-connected disabled vet-
erans and to veterans of the Spanish-American War. I would doubt
that the Veterans' Administration would favor this proposal on the
grounds of the precedent that if would create, and particularly in view
of the fact t h a t it would make eligible approximately 1,977,000 new
veterans for outpatient care. The cost today for outpatient care is
over $90 million. Fee visits cost approximately $6 each and staff
visits around $3.50 with examinations for compensation and pension
running close to $40.
The next bill, H.R. 10361 provides that the effective date of an
award for dependency and indemnity compensation or pension shall
be fixed in accordance with the facts found. I t is particularly appro-
priate for consideration at this time because the subcommittee is ac-
tively engaged in an effort to see that facts are found and acted upon
accordingly, an activity of the subcommittee which I regret to say
the American Legion is not doing anything to enhance or support. I n
this connection, I cannot help but point out that H.R. 866 which became
Public Law 87-97 requiring findings of fact and conclusions of law
did not stir up much enthusiasm on the part of the American Legion.
H.R. 10362 authorizes a rate of $255 a month for a veteran who
has a service-connected disability of deafness in both ears. I t should
be pointed out that a bill to provide for a slightly lesser amount;
namely, $207 a month has been reported by the Committee on Veterans'
Affairs and passed by the House on three separate occasions. H.R.
846, providing for this is presently pending in the Senate Finance
Committee. I know of no reason to believe that the committee would
be in favor of being more liberal than the present bill provides and
I would think that the American Legion could well devote its efforts
to seeing that H.R. 846 is moved in the Senate rather than having
introduced new legislation on this side. •
The last bill, House Joint "Resolution 131, to name the hospital at
Bedford, Mass. for the late- chairman of this committee," the Honorable
E d i t h Nourse Rogers, I do not think any comment on t h a t , bill "is
necessary on my part.
 JUDICIAL REVIEW OF VETERANS' CLAIMS 2065

In closing, Mr. Chairman, I think the record will support that there
are not 43 bills pending before this committee sponsored by the Amer-
ican Legion which have not been acted upon—in fact 16, 5 of which
had not been introduced when Mr. Corcoran spoke. The record will
support in each case that there has been consideration and in several
instances favorable action. Of the 16 bills, only 4 show that they were
introduced at the request of the Legion. Why is this so ?
Mr. KOENEGAY. Subcommittee has received a letter from Mr. Fran-
cis W. Stover of the Veterans of Foreign Wars, written in response
to questions propounded earlier in the hearings. If there is no objec-
tion, Mr. Stover's letter will be inserted in the record at this point..
VETERANS OP FOREIGN WARS OP THE U N I T E D STATES,
Kansas City, Mo., March IS, 1962'.
Hon. JOHN P. SAYLOR,
Member, Veterans' Affairs Committee,
House of Representatives, Washington, D.C.
D E A R M R . SAYLOR: This is in reponse t o t h e questions you posed with respect
t o t h e position of the Veterans of Foreign W a r s concerning t h e establishment of
t h e Veterans' Administration a n d World W a r Veterans' Act of 1924.
While the Veterans of Foreign W a r s supported in principle the legislation which
culminated in t h e passage of t h e World War Veterans' Act, there is no record
concerning our position with respect t o t h e provision which p e r m i t t e d insurance
claims t o be appealed a n d reviewed by Federal courts. Likewise in 1930 t h e
Veterans of Foreign W a r s vigorously supported t h e one-agency, one-stop concept
for t h e administration of veterans' benefits. Again there is no record t h a t t h e
Veterans of Foreign Wars concerned itself with, or was critical of, t h e B o a r d of
Veterans' Appeals a n d the appellate system in general of t h e Veterans'Adminis-
t r a t i o n a t t h a t time.
Hoping this information has adequately answered your questions, I a m ,
Sincerely yours,
FRANCIS W. STOVER,
Director, National Legislative Service.
Mr. KORNEGAT. The subcommittee will stand adjourned.
(Whereupon, the subcommittee adjourned.)