[Congressional Record Volume 148, Number 37 (Tuesday, April 9, 2002)]
[Senate]
[Pages S2415-S2416]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ROCKFELLER:
  S. 2079. A bill to amend title 38, United States Code, to facilitate 
and enhance judicial review of certain matters regarding veterans' 
benefits, and for other purposes; to the Committee on Veterans' 
Affairs.
  Mr. ROCKEFELLER. Madam President, I am today introducing legislation 
which responds to concerns relating to judicial review of VA benefits 
expressed by the authors of the Independent Budget for Veteran's 
Programs for fiscal year 2003. I am doing this in order to provide a 
vehicle for further discussion on these and related matters.
  The Independent Budget, the IB, is the collaborative effort of a 
coalition of four veterans service organizations, AMVETS, Disabled 
American Veterans, Paralyzed Veterans of America, and Veterans of 
Foreign Wars, which is endorsed by dozens of other veterans' groups and 
others. This is the sixteenth year that the these organizations have 
drafted an independent budget to advocate for the funding that they 
feel is necessary to properly provide care and benefits to our 
veterans.
  This bill proposes three amendments to title 38, United States Code, 
and a free-standing provision relating to the Equal Access to Justice 
Act. Section 1 of this legislation would amend section 502 of title 38 
to allow the United States Court of Appeals for the Federal Circuit, 
the Federal Circuit, to review and set aside VA changes to the schedule 
for rating disabilities found to be arbitrary and capricious or in 
violation of statute. Section 2 would amend section 7261 of title 38 to 
specify that the United States Court of Appeals for Veteran Claims, the 
CAVC, shall apply a preponderance of the evidence standard when 
reviewing findings of fact made by the Board of Veterans Appeals. 
Section 3 would amend section 7292 of title 38 to permit the Federal 
Circuit to review CAVC decisions on questions of law. The final section 
of this legislation would allow the CAVC, when awarding attorneys fees 
under the Equal Access to Justice Act to award compensation to 
qualified non-attorney representatives before the CAVC.
  Current section 502 of title 38, provides for judicial review of VA 
rules and regulations in the Federal Circuit, but expressly precludes 
review of VA actions relating to the adoption or revision of the so 
called ``rating schedule'' made pursuant to section 1155 of title 38. 
This rating schedule is the system by which VA categorizes types and 
levels of disability by percentages and, as noted by the IB authors, 
this preclusion of review was based on the view that VA has specific 
expertise in this area, an expertise not found in most courts. However, 
while the IB authors recognize the importance of VA's particularly 
informed judgment in this

[[Page S2416]]

area, they are concerned that, ``without any constraints or oversight 
whatsoever, VA is free to promulgate rules to rating disabilities that 
do not have as their basis reduction in earning capacity.'' To remedy 
this concern, the authors of the IB propose an amendment to section 502 
of title 38 which would authorize Federal Circuit review of rating 
schedule decisions. This is the intent of section 1 of this bill.
  A second concern of the authors of the IB relates to the scope of 
review applied by the CAVC to factual determinations of the Board of 
Veterans' Appeal. Under current law, section 5107(b) of title 38, VA is 
required to give a claimant the benefit of the doubt when ``there is an 
approximate balance of positive and negative evidence regarding the 
merits'' of an issue material to the claim. However, as noted in the IB 
for fiscal year 2003, the CAVC, in reviewing a VA decision on a factual 
issue, is required to apply a ``clearly erroneous'' standard. Under 
this standard, which is the same as applied by Federal appellate courts 
in their review of factual determinations of trial courts, if there is 
a plausible basis for a factual finding, it can not be clearly 
erroneous. This results in the CAVC having to accord significant 
deference to findings of fact made by the Board. As the IB authors 
note, this approach of requiring the CAVC to uphold a Board decision 
based on only the lower ``plausible basis'' undermines the statutory 
``benefit of the doubt'' rule. Section 2 of this legislation would 
protect the ``benefit of the doubt'' rule by amending section 7261 of 
title 38 to specify that the CAVC is to apply a preponderance of the 
evidence standard when reviewing factual determinations of the Board.
  Another concern of the IB authors is the present limit on Federal 
Circuit's authority to review CAVC precedential decisions on questions 
of law. Under section 7292 of title 38, the Federal Circuit is 
authorized to review CAVC findings on questions of statutory or 
regulatory interpretation, but is not authorized to review such 
decisions based on questions of law not rooted on a constitutional, 
statutory, or regulatory interpretation. In a 1992 case, Livingston v. 
Derwinski, 959 F.2d 224, the Federal Circuit has described this 
limitation as follows: ``The interpretation of the board's decision is 
unquestionably a matter of law, but that is not enough to bring the 
appeal within this court's statutory jurisdiction. In the absence of a 
challenge to the validity of a statute or a regulation, or the 
interpretation of a constitutional or statutory provision or a 
regulation, we have no authority to consider the appeal.'' The IB 
authors express the concern that this ``unavailability of Federal 
Circuit review, has, in many instances, undesirable consequences'' and 
urge that the law be amended to give the Federal Circuit jurisdiction 
to review all CAVC decisions on questions of law. Section 3 would 
modify section 7292 of title 38 to accomplish that result.
  A final issue raised by the authors of the Independent Budget is not 
one of procedural fairness, but rather of equality of access to the 
administrative and judicial structures of the veterans' appeals 
process. Currently, veterans who enlist the aid of attorneys, and non-
attorney practitioners supervised by attorneys, who are successful in 
their claims and satisfy the other requirements, can avail themselves 
of the benefits of the Equal Access to Justice Act, the EAJA. The EAJA 
shifts the burden of attorney fees from the citizen to the government 
in cases where the citizen successfully challenges an unreasonable 
government action. In the case of VA claims, however, claimants often 
turn to qualified, non-attorney representatives of the many veterans 
service organizations to represent them, up to and through the CAVC. 
Based upon the prior long standing limitation on paying attorney fees 
in veterans' benefits cases, there had not been an active veterans' 
bar. As a result, veterans service organizations developed expertise to 
enable them to effectively represent claimants before VA. VA does not 
require that these representatives be attorneys, only credentialed by a 
VA-recognized veterans service organization. Therefore, when the court 
was created, certain non-attorney practitioners were allowed to 
represent appellants at the court. However, as currently interpreted, 
these non-attorney practitioners are not eligible to receive 
compensation under the EAJA, despite the fact that they are doing the 
same work as their attorney counterparts. The authors of the 
Independent Budget, representatives of the organizations which are 
affected by this limitation, ask that unsupervised, non-attorneys be 
given access to fee compensation under the EAJA. They believe that this 
change would allow veterans organizations to represent even more 
veterans. Section 4 of the bill would provide for this change.
  As a new generation is called to sacrifice in service of our country 
it is imperative that we ensure the fairness and accessibility of the 
benefits that they so richly deserve and it is for this reason that I 
introduce this bill. As I noted earlier in my statement, I am doing so 
in order to provide a vehicle for detailed discussion of these and 
other issues related to the judicial review of VA claims. I look 
forward to working with my colleagues on these matters in the months 
ahead.
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