prevents him from engaging in a gainful occupation or it does not he receives disability benefits or he does not. The vast majority of VA rejected claims involve upgrading of previously awarded percentage disability ratings. The veteran either gets a little more money or he continues to receive the amount he has been receiving. The incentive to litigate in the courts is inevitably less. ABA supports complete judicial review of VA decisions. We would not like to see the proposed legislation rewritten to limit review to question of law. 1. It often is impossible to separate a question of law from a question of fact. Much scholarly work has been written on this illusive dichotomy. The courts wrestle with it intermittently. Legislation that attempts the severance invites lawyer-like complication. One of several reasons why much litigation is complicated is because the underlying statutes create or portend the complication. This is to be avoided.

2. More often than not, review by a court of a final agency decision invokes the substantial evidence rule. The test is not what the court would have found as fact based upon the evidence-in other words, no secondguessing-but only whether the court finds substantial evidence in the agency record to support the decision of the agency. This test allows the agency far broader judgment than any other standard of review. It is established in administrative law. It is uncomplicated.

The court also looks to arbitrary or carpricious agency action, in other words, irrationality. That ground for reversal is infrequent.

In conclusion, we mention that ABA fully supports the basic principles of S. 330 to remove the existing $10.00 limitation of attorneys fees and to open VA decisions to judicial review.

On behalf of the American Bar Association we appreciate the opportunity to testify on the judicial review provisions of S. 330.

We would be glad to answer any questions you may have.

APPENDIX A-RESOLUTION OF THE HOUSE OF DELEGATES OF THE AMERICAN BAR ASSOCIATION, ADOPTED 1958 MIDYEAR MEETING

Be It Resolved, That the American Bar Association supports the enactment of H.R. 272, 85th Congress, First Session, a bill to permit judicial review of decisions of the Administrator of Veterans' Affairs, with a recommended amendment which would substitute review in the appropriate United States District Court for review in the appropriate Circuit Court of Appeals and that it authorize the Section of Administrative Law to appear before the committees of Congress and to take such other steps as it deems appropriate to carry out this resolution.

APPENDIX B-RESOLUTION OF THE HOUSE OF DELEGATES OF THE AMERICAN BAR ASSOCIATION ADOPTED AUGUST 1975

Be It Resolved, That the American Bar Association reaffirms its endorsement of the principle of judicial review of the decisions of the Administrator of Veterans Affairs; and

Be It Further Resolved. That the President of the Association or his designee is hereby authorized publicly to urge enactment of this proposal of law.

Senator LEAHY. Mr. Addlestone, I understand you are a member of the South Carolina bar and have been since 1965.

STATEMENT BY DAVID ADDLESTONE, NATIONAL VETERANS LAW CENTER; DENNIS W. CARROLL, ADMINISTRATIVE LAW CENTER, BALTIMORE, MD.; AND MARION HARRISON, AMERICAN BAR ASSOCIATION

Mr. ADDLESTONE. That's correct, Senator.

Senator THURMOND. He is a good man, then, I'm sure.

51-437 0 - 79-4

Senator LEAHY. I know that you served in the Air Force as judge advocate for 3 years. And I know Senator Thurmond's strong regard for the Air Force as well as the Army, the Navy, the Marines, the WACS, WAVES, and WAFS.

We are delighted to have you here, of course. We are going to put your statements in the record. When you were on vacation recently in South Carolina, you were talking with Vietnam veterans. Just tell us a little bit about it.

Mr. ADDLESTONE. It was really a simple matter. When I speak to veterans, it is usually the Vietnam-era veteran, but not exclusively. They are usually astonished to learn that the agency that is supposed to assist them in making a transition back into civilian life is the only agency that doesn't have its decisions reviewed by the Federal

courts.

The common expression is, "It seems to me the Federal judges review every nitpicking agency rule that involves corporations and other groups of citizens, why do we have to prove we need judicial review?"

Senator LEAHY. What you are saying is that the VA is the only one that doesn't have judicial review, and when you were talking with the veteran in South Carolina, he seemed amazed at this point; is that a fact?

Mr. ADDLESTONE. That's right.

Senator THURMOND. Mr. Chairman, may I interrupt just a moment! This morning the South Carolina congressional delegation set a meeting of the delegation for 2 o'clock on the independent truckers' strike. Our people in South Carolina are losing millions of dollars a day because some of the independent truckers are preventing other truckers from carrying fresh fruits and vegetables. It is a very urgent matter. The meeting of the congressional delegation was only scheduled this morning to discuss this problem.

I would like to go over there for a few minutes, and I will return. I have a few questions. If I don't get back, you could let counsel here ask then.

Senator LEAHY. And if by any chance we finish prior to your coming back, we will submit those questions to the record, so they can answer back.

Senator THURMOND. I would like for the minority to expound these questions if you have no objection.

Senator LEAHY. We could propound them for the record if you are not here.

Senator THURMOND. Then, if he wants to come back for a little bit, if you give him that chance.

We always allow counsel to do it, and I did it this morning for Senator Metzenbaum.

Senator LEAHY. You know my feelings, anything you ask for, you always get. You know that.

Senator THURMOND. Thank you.

I will try to get back as soon as I can.

Senator LEAHY. We will miss you during the time, but I will struggle along.

Incidentally, the reaction that you get from the veterans of South Carolina is very similar to the reaction I have from the veterans of

Vermont and actually was quite similar to my own reaction when I first found out.

Title IV contains language which authorizes attorneys fees to be taken from past-due benefits if the claimant is successful. What is your position on this section?

What I am wondering is, do you feel that adequate representation will result from this contingency fee provision? Won't the veteran be destitute when he or she seeks this advice?

Mr. ADDLESTONE. I have been wrestling with this for about 6 months. I am not sure what the answer is as public interest attorneys, we always favor having government assessed fees when we prevail. But I guess to be candid, I think attorneys will act as a screening device for bad cases.

If someone comes to you with a bad case, the response is don't waste my time, the court's time, or your money. So, I think in some respects, it will make attorneys be somewhat conservative about going into court because the fees are going to be somewhat limited, and they are normally going to be based on fees prevailing in the case. To that extent, it would limit the flow of cases to Federal court.

Senator LEAHY. I see.

The opponents of this bill raise the argument that there is no hue and cry from the veterans population regarding the outrageous and unfair determinations by the BVA. Is that your experience? Do those instances frequently arise?

Mr. ADDLESTONE. Well, the traditional organizations have opposed judicial review. And I don't think if they polled their members that would be their position. I think their problem is difficulty in just bureaucratically changing the policies.

I think without the large veterans organizations changing their position, the opponents are always going to say it is not a hue and cry. I have been handling military and veterans' cases for the last 9 years, and most of the veterans' cases that go to the American Civil Liberties Union, many affiliates or similar organizations somehow get to my desk by referral. I have also received many telephone calls and I am in close contact with attorneys who have similar practices.

Literally, we have had thousands of veterans, and this is a rough estimate, but an accurate one, who have contacted me, the offices I have been associated with, the attorneys I have been associated with, and others, say about 100 attorneys in the country that specialize in military veterans' law, and the theme is always the same: Any place we can go with this case; and surprise that court is not an alternative. As a practical matter, there is a place we can go. That is to the Board for Correction of Military Records. They have the authority under 10 U.S.C 1552 to correct any error or injustice in military records.

But it is a highly specialized practice located here in Washington. The Board has never traveled, and rarely grants hearings. So only the well-to-do veteran, usually former officers concerned about promotion or medical retirement problems, can resort to that Board.

Senator LEAHY. Mr. Carroll, do you have a view on that?

Mr. CARROLL. Yes, Senator. I am not sure why there is not a flood of veterans writing Senator Thurmond, for example. I believe part of the reason is because they have been told by somebody in the VA, or a

service organization, that they don't meet the requirements of law, and that there is nothing further they can do.

People in the same circumstances in social security context know they have certain rights, know they have the right to appeal, and have the right to go to Federal court. Because they are advised of these rights, I think they insist on pursuing their claim.

The other thing is that the Veterans' Administration has a liberal reopening policy so in some respects, the case is never over, although it stays within the agency, and they are able to file another application and start the process over again.

Senator LEAHY. Any other member feel free to answer this. Would you expect a reviewing court to substitute its judgment for the Board of Veterans' Appeals even thought it would be far less familiar with the everyday body of cases dealt with at the VA? Would a specialized court of Veterans appeals be preferable to review these cases? Mr. CARROLL. I would like to respond to that.

The concept of a specialized court dealing simply with veterans' cases does not seem to me to be appropriate. There is a certain value in having nonspecialized, noninstitutional Federal judges reviewing the evidence submitted against the legal standards Congress provided in

the statute.

The danger of specialized courts is, first, veterans will have very little access to it since it presumably would be located in Washington. Second, the delays would probably be great. Third, the judges wouldn't have the broad experience a Federal judge brings to review of general agency practices and decisionmaking.

I just don't think a specialized court for veterans' cases alone is the way to go. I also don't think that Federal judges would be-I know the complaint has been made here today and the fear is that Federal judges would be substituting their judgment on factual issues for the judgment in the Veterans' Administration's decision. I don't think that fear is justified.

I think it stretches it a great deal to use the social security experience as a perfect analysis because I think the 50-percent reversals rate by Federal courts demonstrates that the Social Security Administration is not properly deciding cases, and for a lot of reasons that don't apply to the VA. The social security system of appeal is quite different from the Veterans' Administration system of appeal. The Board of Veterans' Appeals is far more of a true appellate body than its counterpart in the social security.

So in the VA context you have more consistency on appeal, and you have less decisions escaping the agency that were totally wrong. So I don't think you can use the 50-percent reversal rate as a standard because the VA is probably more often right than the Social Security Administration.

Senator LEAHY. Mr. Harrison, did you want to add to that?

Mr. HARRISON. Senator Leahy, as to your two questions, the ABA section of administrative law would oppose the creation of a special

court.

If I may amplify, the general experience has been that special courts present two problems as a minimum, sometimes more than two.

One is the degree to which they are swept up by the specialized bar

that appears before them and by the agency whose decisions are reviewed. The other is the lack of interest or perhaps lesser interest among the outstanding lawyers and judges of the country in serving upon them. For both of those reasons and others, the ABA administrative law section, acting under blanket authority, meaning it is cleared with all other interested sections and committees in the ABA, has always opposed special courts.

If I may speak personally, I would say if there were to be a special court established in addition to those now existing, this would not be a particularly beneficial place to experiment.

As to the more substantive question that you asked, Senator Leahy, I think there is an awful lot of criticism, much of it unfounded, that judges substitute their own opinions for those of the agency. My experience, both in and out of government over some 25 years at the bar, has been that most Federal district judges and most Federal appellate judges are wrestling sometimes rather desperately with problems as they perceive them, problems which sometimes are created by confusion in the record, problems which sometimes are created by complicated or vague or both vague and complicated statutes.

Although one does face the predilection that one judge might be an activist in the sense of trying to maximize the opportunity he perceives Congress gave him, whereas another might be more disposed to strictly construe a statute, nevertheless, most of them are attempting to achieve the route that they perceive Congress intended.

I think it is perhaps a certain measure of sour grapes when you have people contending that the judge has substituted his views for the views of the agency or his view of the evidence over the agency's view of the evidence.

Senator LEAHY. The American Legion claims that they and other national veterans' organizations have a success rate almost identical to attorneys in arguing cases before the VA. As you know, attorneys can be more selective in accepting clients.

Does the need really exist for lawyers to be present at the administrative level?

Mr. HARRISON. Could you repeat that question?

Senator LEAHY. Does the need really exist for lawyers to be present at the administrative level?

Mr. HARRISON. Within the Veterans' Administration?

Senator LEAHY. Yes.

Mr. HARRISON. I frankly can't answer it because so far as I know, no lawyer has ever been privileged to be there.

Mr. ADDLESTONE. Senator Leahy, I supplied a copy to the committee staff of a relevant report. The Legal Services Corporation recently reported to Congress in a section 1007 (b) study of the delivery of legal services to certain groups of Americans. Veterans are included in that. And their analysis indicated that in the very few veterans cases that attorneys are getting into, they are enjoying a higher success rate than the service organizations.

They did a slightly different and later analysis, and I think the study itself is very instructive on the whole issue. It is based largely on interviews with BVA, Discharge Review Board and Board of Corrections of Military Records personnel. They generally were very sup