Veterans push for their day in court

A more than 10-year-old debate over the legal rights of America's 30 million veterans is again making waves in Washington. The House Committee on Veterans' Affairs is currently split over a proposal to grant the right of judicial review to veterans and their families whose death or disability claims have been denied by the Veterans Administration (VA).

Under the present system, veterans may appeal claims denied by regional VA offices to the Board of Veterans Appeals (BVA). Some 45,000 claims are appealed each year at the BVA, a review board that is subject to VA regulations. The BVA's case approval rate is roughly 14 percent. Once the BVA denies a claim, it is closed. The bill would allow veterans the added step of appealing cases in federal court after they had been closed by the BVA.

The proposal has not only divided the committee, which is scheduled to vote on the measure July 16, but it has also fragmented the various veterans organizations and sent panic straight to the heart of the VA.

The debate focuses on uncertainties over the bill's potential effects, and general satisfaction with the VA's past performance. The tremendous size of the VA, with a budget of $24 billion, adds fuel to the opposition.

Advocates for the bill argue that denial of judicial review violates veterans' right of due process by making the VA both their ``judge and jury.'' Bart Stichman, litigation director for the Vietnam Veterans of America, says that all agencies make mistakes and that, in some cases, ``the VA interprets the law improperly or improperly evaluates the evidence.'' Yet, he continues, veterans have no safeguard against such grievances. At the same time, the system is ``unfair and one-sided,'' he charges. The VA sues more than 40,000 veterans each year for supposed overpayments, but Mr. Stichman says that ``veterans are prevented the same right.''

Opponents counter these arguments with a blanket statement that the VA currently works well and that any change would be detrimental.

Donald Ivers, general counsel of the VA, told a hearing last week that judicial review would ``sour'' the currently ``efficient, just, and compassionate system of claims resolution'' by making it an adversarial relationship. ``The prospect of court scrutiny and repeated challenge to our pro-veteran project would necessarily result in more rigid and more formal procedures.''

US Rep. Don Edwards (D) of California, who introduced the measure, says, ``This is the biggest issue to face the veteran population [veterans plus dependents total 50 million people] in many years. It's a very hot issue with high stakes. Veterans, who have given so much for our country, are the only group of Americans who don't have due process of law, and who can't go to federal courts as a last resort for justice. It's really medieval.''

``If it ain't broke, why fix it?'' asks Rep. George V. Montgomery (D) of Mississippi, who chairs the Veterans Affairs Committee.

``The Veterans Board of Appeals has done a very good job overall,'' he adds. ``They've been very generous paying up claims. They've bent over backwards for the veterans. I think we've got a good system and I just get concerned about what we might come up with.''

Rep. Lane Evans (D) of Illinois, head of the Vietnam-Era Veterans in Congress Caucus, claims this is the No. 1 item on the group's agenda this year. He agrees that the VA has largely acted as a friend to the veteran.

But judicial review is necessary, he explains, ``for a small minority of veterans that have fallen through the cracks and who don't get fair treatment.''

More than 150,000 veterans have claimed disabilities linked to exposure to the defoliant Agent Orange used in Vietnam, yet the VA routinely turns down most of these cases.

Claims against the VA are not included in the $150 million settlement that was made in 1984 with the seven chemical companies responsible for producing Agent Orange. Veterans suffering from exposure to nuclear radiation during atomic tests also have a low case-approval rate of just 3 percent.

Opponents of the bill are mainly concerned that the VA's relationship with veterans will become more adversarial. They are also worried about sky rocketing benefit and court costs, cases flooding the courts, and inconsistent decisions.

Veterans were barred from appealing BVA decisions in federal court by the Economic Recovery Act of 1933, as were federal employees appealing compensation benefit cases. Today, only these two groups are denied access to federal courts.

Adding to the controversy is a second proposal in the bill that changes an older and (proponents claim) even more archaic law.

In 1862, Congress set a $10 limit on the amount veterans could pay lawyers representing them in cases before the VA to protect veterans from high-priced legal fees. But this law has effectually kept lawyers out of the VA. Opponents feel that allowing higher legal fees will result in increased usage of lawyers, which will in turn produce an adversarial setting.

But an aide to Representative Edwards argues that the bill will not change internal proceedings in the VA.

In addition, she explains that the bill keeps the current $10 limit on legal fees at the regional level, ensuring that nothing would change at that level. Legal fees up to $500 would be allowed at the BVA level where veterans may need more help to win complex claims.

Mr. Stichman of the Vietnam Veterans of America agrees and says there is no proof that the system will become adversarial simply with the addition of court review.

He cites the example of the Board for Corrections of Military Records, which has the same informal arrangement but does have judicial review. Only 2 percent of the cases denied by the Board for Corrections of Military Records end up in federal court.

One of the largest hurdles facing the bill is the lack of consensus among the veterans organizations themselves. Only one organization, the Vietnam Veterans of America, has come out firmly in support of the bill.

Most of the other organizations support some form of judicial review but feel the bill goes too far. Jim McGill of the Veterans of Foreign Wars says, ``We support the concept of judicial review . . . but only in cases of law and regulation.''

Supporters are quick to point out that Congressional Budget Office estimates for the cost of judicial review are relatively low.

They project $2 million in court costs and VA payments over the first year, $3 million in the second year, and $4 million for the following three years. In addition, under the bill, judicial review may not be used by veterans to sue the federal government for millions in benefits. For each level of disability Congress has authorized a specific amount. The court would review the case as it had been heard by the BVA and decide whether the veteran was entitled to a set pension.

The debate over judicial review has a familiar ring. In the last 10 years, the Senate has passed three judicial review bills but the issue remained stuck in the House.

This time, however, with 211 cosponsors and nearly half of the committee in support, the bill appears to have a much greater chance of becoming law.