IF A VETERAN'S request for benefits is denied by the Veterans Administration, where can he take his appeal? The answer is the Veterans Administration - or nowhere.
When Congress created the Veterans Administration, it purposely put the agency beyond the reach of the courts and the President. Decisions by the VA concerning a veteran's request for benefits, a 1933 law stated, "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 decision." That remains the law today.
According to Guy H. McMichael III, general counsel of the Veterans Administration, the agency processed more were appealed to the Board of Veterans Appeals a 52-member, presidentially appointed panel within the VA which serves as the ultimate arbiter of veterans' claims. About two-thirds of the appeals were denied.
Sen. Gary Hart (D-Colo) introduced legislation (S, 364) in January which would empower the federal courts to review decisions of the Veterans Administration. It also would lift the $10 restriction on what a lawyer may be paid for representing a veteran in VA proceedings. This limitation, Hart contends, amounts to a "de facto prohibition of legal representation."
Hart's bill has stirred up a hornet's nest of opposition. Its most vocal adversaries include some of the long-established veterans organizations.
Edward H. Golembieski, a conultant to the national veterans affairs and rehabilitation commission of the American Legion, told a reporter: "We are opposed to the concept of judicial review of the deiisions of the administrator of veterans affairs . . . We are not assured that in the long run that it would benefit veterans as a group."
He cited the "informal procedure" now used by the Veterans Administration which makes it easy, he said, to "reopen cases. We have had some cases up before the Board of Veterans Appeals five or six times." The American Legions is concerned, according to Golesmbieski, that a decision in court against a veteran would close his case for good.
"The Veterans of Foreign Wars," accoring to its legislative director, Donald Schwab, "employs more than 100 trained and qualified paralegal service officers throughout the United States, in every Veterans Administration regional office and in Washington, to represent claimants before the Board of Veterans Appeals."
The VFW, said Schwab, "has been gratuitously furnishing such qualified representation for more than 50 years, whether he or she is eligible for membership in our organization." Limit on Lawyer Fees
CONGRESS FIRST LIMITED the feels lawyers could collect in veterans' cases during the Civil War. The limitation, then $5, was intended, in the words of one congressman, to prevent lawyers and other claims-agents from becoming "sharks who prey upon the pensioners."
In a 1918 floor debate in the House of Representatives over restricting fees of $3 another congressman explained the rationale: "It is not the intent of Congress that these mercenary claim-agen leeches should sap the blood of any financial benefit from the government by putting up these false claims and establishing their right to this 10 per cent commission for doing nothing and doing what the government itself intends to do in every individual case."
Supporters of this restriction defend it today with less sanguine, but nonetheless emotional, language.
"It is both disheartening and distasteful, indeed," said the VFM's Schwab, "to think that we have members of the bar who would want to depend for a livehood upon grasping a portion of the stipend awarded disabled veterans, their widows or orphans."
The VA's McMichael defends his agency's present methods. "Current VA claims procedures are designed to assure the claimant due process and to prevent any possible abuse of discretion by the administrator," he said.
"Further, if the evidence presented raises a reasonable doubt regarding service origin, degree of disability or any other point, that doubt is to be resolved in favor of the claimant."
John F. Heilman, deputy legislative director d for DIsabled American Veterans, agrees that the VA does not act as an "adversary" when a veteran makes a claim. The agency, he said, "seeks to grant rather than deny benefits if entitlement is at all possible under existing laws, rules and regulations."
"However," he added, "it must also be noted that a VA claim is a claim against the Veterans Administration and that the merits of a claim are evaulated by the agency itself. The VA then performs the multiple role of defending itself against a claim, in some instances representing the claimant in the prosecution of the claim and, in all instances, judging the claim which it is also defending itself against."
It is this multiplicity of roles and the informal nature of the VA's proceedings which trouble Hart and other advocates of judicial review. One such advocate is Dennis W. Carroll, an attorney with the National Senior Citizens Law Center.
Although Carroll conceded that the VA does "attempt to serve the best interests of veterans," some claimants, he said, "are at times subjected to arbitrary and capricious treatment and yet are left without the normal (i.e., legal) remedies routinely granted to claimants of benefits under virtually all other public benefit programs in the United States, including welfare, Social Security, SSI (Supplemental Security Income), unemployment insurance and black lung."
In a hearing before the Senate Committee on Veterans' Affairs last month, Carroll cited several examples:
A veteran judged mentally incompetent in 1936 and committed to St. Elizabeths Hospital had his pension discontinued because, the VA told him, "you failed to cooperate with this office by not executing and returning Form 8-59 indicating the amount of your income for 1948." The letter was sent to the man at St. Elizabeths, where he remained until his death in 1961.
A veteran disappeared in 1961; 10 years later his wife applied for widow's benefits. Although seven years of unexplained absence is normally sufficient for a legal presumption of death, the VA held up granting her a pension until 1975.
In 1969, a veteran's widow applied for a pension, but the VA turned her down because the veteran, a Louisiana resident, apparently had obtained a divorce from a Tennessee court just before his death. Although the woman was able to prove that the divorce was legally invalid, the VA did not award her a pension until April of this year.
"In each of the above cases," Carroll told the committee, "judicial review would clearly have served an important and useful function as it would have assured that the Veterans Administration carried out the statutory commands as passed by the Congress." Change in Attitude
THREE CASES compiled by the military law project of the Memphis Area Legal Services Association were presented to the committee in support of judicial review of VA proceedings.
Shot by the enemy in Korea, a soldier repeatedly entered military hospitals for abdominal pain. Surgery and medication gave him little relief, so he began taking heroin, subsequently turned himself in to military authorities for drug addiction and received an undesirable discharge. Years later, a civilian hospital fround a bullet fragment in his abdomen; the VA had denied him treatment because his service had been "dishonorable."
A Marine who received an undesirable discharge in 1938 because he had been convicted in a civilian court of a traffic violation is still trying to get his discharge changed to obtain VA benefits. The man, now 61, has had several heart failures and both legs amputated but cannot receive medical treatment from the VA.
Although the VA ruled in February, 1976, that a Mrs. F was the legal widow of a veteran who died in 1974, she has yet to receive her pension. The VA made a mistake and awarded the pension to another woman but has suspended all payments pending the appeal of the other woman.
At the hearing of the Veterans' Affairs Committee, Sen Hart said, "The fundamental issue addressed in the legislation . . . is simply justice for the American veteran. To deny a citizen access to an attorney, isolate a federal agency from judicial review and not to allow citizens affected by an agency's action to be able to participate in or comment on the development of guidelines that set the policy for the agency, goes against the very principles of our constitutional system."
The VA, which historically has resisted congressional efforts to make its proceedings subject to judicial review, apparently has undergone a change of thinking. In a letter to the chairman of the Veterans' Affairs Committee, Sen. Alan Cranston (D-Calif.), Max Cleland, the administrator of veterans affairs, declined to endorse Hart's legislation but agreed that "the law should be amended so that veterans have access to federal courts to resolve any constitutional questions arising from the administration of Veterans Administration programs." Cleland also said that he "would not appose judicial review of individual benefit decisions not involving constitutional questions."
The Senate Committee on Veterans' Affairs is expected to issue a favorable report on S. 364 early next year. A similar bill, introduced in the House by Rep. Timothy Wirth (D-Colo.), has been bottled up in the House Veterans' Affairs Committee.