Amicus Curiae Brief — National Association of Radiation Survivors v. Brown, Secretary of Veterans Affairs

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In the :

Supreme Court of the United States

OCTOBER TERM, 1993

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, a

California non-profit corporation; REASON F. WAREHIME, an

individual; DORIS J. WILSON, an individual; and KATHRYN L.

HINKLE, an individual, on behalf of themselves

and all others similarly situated,

Petitioners,

V.

JESSE BROWN, Secretary for Veterans Affairs; THE

DEPARTMENT OF VETERANS AFFAIRS; THE UNITED STATES

OF AMERICA; and JANET RENO, Attorney General of the

United States,

Respondents.

On Petition For A Writ Of Certiorari _

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICUS CURIAE

Alliance for Atomic Veterans, Cituzen Soldier, Health and

Energy Institute, Military Family Support Network, Nationa!

Committee for Radiation Victums, Natural Rights Center,

Nuclear Information and Resource Service,

and Veterans Due Process, Inc.

ALBERT K. BATES Ek. COOPER BROWN

556 Farm Road 6935 Laurel Ave Su 204

Summertown, TN 38483 lakoma Pk MD 20912

615-964-3992 202-775-8786

Attorneys for Amict Curtae

BEST AVAILAB

In the

Supreme Court of the United States

OCTOBER TERM, 1993

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, a

California non-profit corporation; REASON F. WAREHIME, an

individual; DORIS J. WILSON, an individual: and KATHRYN L.

HINKLE, an individual, on behalf of themselves

and all others similarly situated,

Petitioners,

oP

JESSE BROWN, Secretary for Veterans Affairs: THE

DEPARTMENT OF VETERANS AFFAIRS; THE UNITED STATES

OF AMERICA; and JANET RENO, Attorney General of the

United States,

Respondents.

On Petition For-A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICUS CURIAE

Alliance for Atomic Veterans, Citizen Soldier, Health and

Energy Institute, Military Family Support Network, National

Committee for Radiation Victims, Natural Rights Center,

Nuclear Information and Resource Service,

and Veterans Due Process, Inc.

ALBERT K. BATES E. COOPER BROWN

556 Farm Road 6935 Laurel Ave Su 204

Summertown, TN 38483 Takoma Pk MD 2091?

615-964-399? 202-775-8786

Attorneys for Amici Curiae

No.

In the

Supreme Court of the United States

OCTOBER TERM, 1993

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, a

California non-profit corporation; REASON F. WAREHIME, an

individual; DORIS J. WILSON, an individual; and KATHRYN L.

HINKLE, an individual, on behalf of themselves

and all others similarly situated,

Petitioners,

V.

JESSE BROWN, Secretary for Veterans Affairs: THE

DEPARTMENT OF VETERANS AFFAIRS; THE UNITED STATES

OF AMERICA; and JANET RENO, Attorney General of the

United States,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICUS CURIAE

Alliance for Atomic Veterans, Citizen Soldier, Health and

Energy Institute, Military Family Support Network, National

Committee for Radiation Victims, Natural Rights Center,

Nuclear Information and Resource Service.

and Veterans Due Process, Inc.

ALBERT K. BATES E. COOPER BROWN

556 Farm Road 6935 Laurel Ave Su 204

Summertown, TN 38483 Takoma Pk MD 20912

615-964-399? 202-775-8786

Attorneys for Amici Curiae

a -

QUESTIONS PRESENTED

1. Upon this Court’s remand to consider the constitutionality

of the fee limitation as applied to complex claims, was the

District Court free to hear evidence and to make further factual

findings relating to these remanded claims? If so, was the

Court of Appeals free to ignore those factual findings absent a

determination that they were clearly erroneous?

2. Under this Court’s standard for measuring procedural due

process, plainuffs must show the risk of an erroneous

deprivation of a property interest and the probable value of

additional safeguards. Did the Court of Appeals err by

requiring petitioners to show instead:

— not only a risk of erroneous deprivation, but also that a

significant number of petitioners’ claims had been wrongly

decided?

—- not only the probable value of a lawyer’s assistance,

but also that lawyers are absolutely “necessary” to ensure

procedural fairness?

3. Did the Court of Appeals err in treating selected excerpts of

“legislative history” to unenacted statutes as supplanting the

District Court’s specific factual findings regarding the

operation of the veterans’ benefit claims system as applied to

petiuioners?

4. Did the Court of Appeals err by refusing to examine

petiuoners’ First Amendment claims under a standard of strict

scrutiny that requires that the fee limitation be narrowly

tailored to serve a compelling governmental interest?

ote

TABLE OF CONTENTS

PN sce eee

Tae. 0 oc a eee ul

SUMUMMATY OF ATBUINOIE. 0555.05 osiiceecccsieccscaveceeceeecees.... l

I CEE sateeck oe ee ee ee 2

Reasons for Granting the Writ ..................2................. 5

THIS CASE PRESENTS A SIGNIFICANT

MISCONSTRUCTION OF THE DECISION OF THIS COURT

WHICH, IF SUSTAINED, WILL IMPOSE FAR-REACHING

LIMITATIONS UPON THE RIGHTS OF VETERANS TO

RECEIVE FAIR AND MEANINGFUL ADJUDICATION OF

BENEFIT CLAIMS

TABLE OF AUTHORITIES

Cases:

Abernathy v. Principi, 3 Vet. App. 461 (1992)................. 9

Akles v. Derwinski, 1 Vet. App. 118 (1991) ................... 8

Ascherl v. Brown, 4 Vet. App. 371 (1993).................000. 8

Ashmore v. Derwinski, 1 Vet. App. 580 (1991) ............... 8

Bentley v. Derwinski, 1 Vet. App. 28 (1990)................... 8

Booth v. Brown, 4 Vet. App. 280 (1993)...................005. 8

Cleary v. Principi, 3 Vet. App. 495 (1992) ..................005 9

Colvin V. Derwinski, 1 Vet. App. 171 (1991).........0000000.. 9

Corchado v. Derwinski, | Vet. App. 160 (1991)............... 8

Cosman vy. Principi, 3 Vet. App. 503 (1992) ................... 9

Cousino v. Derwinski, | Vet. App. 536 (1991)................ 9

Crandall vy. Derwinski, 2 Vet. App. 113 (1992)................ 8

Culver v. Derwinski, 3 Vet. App. 292 (1992).................. 7

DiBenedetto v. Brown, 4 Vet. App. ___, 1993 Vet App.

IPE COME Da SPD vee vcsnksanacevecdidesisines vaceces 8

DiDonato v. Derwinski, 2 Vet. App. 42 (1992) .............. 10

Doub v. Derwinski, | Vet. App. 17 (1990) ................... 10

Douglas v. Derwinski, 2 Vet. App. 103 (1992) ................ 8

Drenkhahn v. Derwinski, 2 Vet. App. 207 (1992) ........... 10

Ephraim v. Brown, 4 Vet. App. ___, 1993 Vet. App. LEXIS

Re I BOD, FFG i bares ccesincsvonedeceevascsnsentevaneses 9

Fisher v. Derwinski, 2 Vet. App. 406 (1992)...............00.. 9

Fugere v. Derwinski, 1 Vet. App. 103 (1990).................. 8

Gilbert v. Derwinski, | Vet. App. 49 (1990) ................ 8,9

Godwin v. Derwinski, | Vet. App. 419 (1991) ................ 8

Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) .6

Green v. Derwinski, 1 Vet. App. 121 (1990)................... 8

Hanson v. Derwinski, | Vet. App. 512 (1991)...............5. 9

Hatlestad v. Derwinski, 3 Vet. App. 213 (1992)............... 8

Hohol v. Derwinski, 2 Vet. App. 169 (1992)...........000.08. 8

Hyder v. Derwinski, | Vet. App. 221 (1991)... 8

Jolley v. Derwinski, | Vet. App. 37 (1990)................00. 8

Karnas v. Derwinski, | Vet. App. 308 (1991).......00....00. 8

King v. Brown, 4 Vet. App. 519 (1993) ............... cc cee eee 8

Littke vy. Derwinski, 1 Vet. App. 90 (1990)..................45. 8

Magula vy. Derwinski, | Vet. App. 76 (1990)... 00.00... 0.05. 10

Mee y. Brown, 4 Vet. App. 220 (1993) .............ccceceeecee: 9

Morris v. Derwinski, | Vet. App. 260 (1991) ...............45. 8

Murincsak v. Derwinski, 2 Vet. App. 363 (1992)..0........... 9

ee |

- iv -

Murphy v. Derwinski, | Vet. App. 78 (1990) ......0........... 8

Myers v. Derwinski, 1 Vet. App. 127 (1990)... 8

National Ass'n of Radiation Survivors v. Derwinski, 782

F.Supp. 1392 (N.D. Cal. ee ebdlowdioes 6,10

National Ass'n of Radiation Survivors y. Walters, 473 U.S.

305, 105 S.Ct. 1380, 87 L.Ed.2d 220 {ae 6,13,14

National Ass'n of Radiation Survivors y. Walters, 589

F.Supp. 1302 at 1313-14 (N.D. Cal. . _ sae 6

Parker v. Derwinski, | Vet. App. 522 (1991) .000... oo... 8

Philbrick v. Derwinski, 2 Vet. App. 466 (1992) .......000 Y

Romeo v. Brown, 4 Vet. App. __, 1993 Vet. App. LEXIS

Poe Ange G, 1993) ..........0ccccecrocsesevereesecseciccc...., 7)

Roy v. Brown, 4 Vet. App. __, 1993 Vet. App. LEXIS 506

(September 24, 1993)...........0.....cccccesecensooese......... 10

Sagainza v. Derwinski, 1 Vet. App. 575 (1991)... 8

Sawyer v. Derwinski, | Vet. App. 103 (1991) ...0.000000. 8

Schfrath v. Derwinski, | Vet. App. 589 (1991) 200000... 8

Servello v. Derwinski, 3 Vet. App. 196 (1992)... 8

Sheed v. Derwinski, 2 Vet. App. 255 (1992)....00.0.0.0....... 9

Skinner v. Derwinski, | Vet. App. 2 (1990)....0000.0000000.. 10

Stein v. Derwinski, 2 Vet. App. 517 (1992) ......000000 Y

Strott v. Derwinski, 1 Vet. App. 114 (1991)... 10

Sudranski v. Derwinski, | Vet. App. 457 (1991) ............ 10

Travelstead v. Derwinski, | Vet. App. 344 (1991)... 8

Trytek v. Derwinski, 3 Vet. App. 153 (1992) ..00000. 000.00... 8

Waddell v. Brown, 4 Vet. App. ___, 1993 Vet. App. LEXIS

S51 CHOPIN 7, BPIT) os csensceccscsssos.s........,..... 9

Watson v. Brown, 4 Vet. App. 189 (1993)... 7)

White v. Derwinski, | Vet. App. 519 (1991) 200, 8

Williams v. Brown, 4 Vet. App. 270 (1993)..0000 oo. 9

Wood v. Derwinski, | Vet. App. 190 (1991). 000. 8

Statutes:

38 U.S.C. §§ 3404 and 3405....... soanbabewaubidiendoveVuedeed om

38 U.S.C. §§ 5904 and BE Widueucketrvedisoviiae te eee

Other Authorities:

Abrams, R., “Complex Statutory Scheme Creates Heartache

and Heartbreak for Radiation Claimants.” The Veterans

Advocate, 4:8:61-66 (April, 1993) ..000....00...0000000 10)

In the

Supreme Court of the United States

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, a

California non-profit corporation; REASON F. WAREHIME, an

individual; DORIS J. WILSON, an individual; and KATHRYN L.

HINKLE, an individual, on behalf of themselves and all others

similarly situated,

Petitioners,

V.

JESSE BROWN, Secretary for Veterans Affairs; THE

DEPARTMENT OF VETERANS AFFAIRS; THE UNITED STATES

OF AMERICA; and JANET RENO, Attorney General of the

United States,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals For The Ninth Circuit

BRIEF OF AMICUS CURIAE

SUMMARY OF ARGUMENT

Amici public interest organizations, Alliance for Atomic

Veterans, Citizen Soldier, Health and Energy Institute,

Military Family Support Network, National Committee for

Radiation Vicums, Natural Rights Center, Nuclear Information

and Resource Service, and Veterans Due Process, Inc.,

respectfully urge that a Writ of Certiorari issue to review the

Judgment and Opinion of the United States Court of Appeals

for the Ninth Circuit entered in this proceeding on November

24, 1992. The issues presented on review are timely,

NO

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substantial and of great significance to the amici organizations

and to the parties and interests which they represent. The

parties to the appeal have consented to this filing.

The rationale provided by the district court relied upon the

important considerations which underlie the intent of Congress

to remove veteran’s claims from the Article III courts and to

repose them in a system of the Executive Branch. Congress

did not intend to remove attorneys from this process, but a

century of inflation has accomplished that effect. A century of

growing complexity, and increasingly insideous weaponry,

capable of inflicting long-term latent injuries, has also created

an Article II system in which an attorney is essential to

marshall proof and to protect claimants from manifold abuses

of the process.

INTEREST OF AMICI

Amici Curiae are eight independent, nonprofit, non-

zovernmental, public interest organizations concerned with

and affected by the due process and right to counsel issues

raised in this case.

Alliance for Atomic Veterans is a national and

international non-governmental association representing

radiation-exposed veterans in six countries. Since 1983, the

Alliance has served as an advocate for reform of national and

international laws restricting the rights of radiation victims to

fair compensation for their injuries. Alliance also works for an

enu to nuclear tests in order to prevent additional damage to

future generations. The Alliance has U.S. offices at Box 32,

Topock, AZ 86436.

Citizen Soldier is a public advocacy project of Alternatives

to Militarism, Inc., a non-profit charity. Citizen Soldier works

for the rights of active duty GIs and veterans on issues related

to service connected injuries and health problems. Citizen

Soldier has, since 1969, provided counseling and assistance to

thousands of military veterans in claims before the Veterans

Administration and has argued for remedial! legislation in

Congress. The staff of Citizen Soldier brought national

attention to the atomic veteran dilemma with the publication of

—aeaaa aa s

Fr

the book, G/ Guinea Pigs in 1980. Citizen Soldier is located at

175 Fifth Ave., New York, NY 10019.

Health and Energy Institute is a public interest research

and educational organization, bringing together scientists,

educators, policymakers, and citizens to examine and

formulate improvements to public policies with respect to

ionizing radiation and other environmental dangers. Health and

Energy Institute is located at P.O. Box 5357 Takoma Park,

MD 20912.

Military Family Support Network represents the

interests of active duty Gls and veterans on issues related to

injuries and health problems stemming from service in the

_ Persian Gulf during Operations Desert Shield and Desert

Storm. The Network successfully urged President George

Bush to create a national registry for the some 4,000 veterans

suffering from Gulf War Syndrome. The Network provides

counseling and assistance to veterans bringing VA claims. The

Military Family Support Network is located at PO Box 2047,

Buies Creek, NC 27506.

National Committee for Radiation Victims is a

congress of representatives of national and international

radiation victims and survivors groups and professionals

concerned about the health effects of radiation and the rights of

victims to receive meaningful relief. Since 1985, NCRV has

provided the public education foundation for reform of the VA

compensation and pension program and has contributed to the

creation of a federal compensation program for Utah

downwinders, Navajo uranium miners, and nuclear test site

workers. NCRV is located at 6935 Laurel Ave., Takoma Park,

MD 20912.

Natural Rights Center is a public interest law project with

offices at 556 Farm Road, Summertown TN, 38483. The

Center provides representation to a number of veterans in

Agent Orange, 1onizing radiation and other complex claims

before the Veterans Administration regional offices, the Board

of Veterans Appeals, the Court of Veterans Appeals and other

- 2

adjudicatory bodies.! The Center brought the first successful

claim for service connection related to Agent Orange exposure

and has provided free attorney representation for more atomic

veterans than any other public interest law project. The Center

also actively represents the interests of its members in

governmental actions having significant constitutional and

human nights implications.

Nuclear Information and Resource Service is a non-

profit educational organization focusing on nuclear power and

energy alternatives, nuclear waste, radiation and health. NIRS

comprises a coalition of individuals and local action

Organizations concerned about our nation’s environmental

future. NIRS is located at 1424 16th St., Washington DC

20036.

! The Center presently represents one radiation claimant whose decedent

initiated his first VA claim for injuries secondary to radiation exposure in

1947. This claim has been in active, attomey-represented litigation before

the VA since 1980, and has involved well in excess of 2,800 hours of

attomey and expert time for work which has included military archiva!

research, plutonium bone and tissue assay, two independent dose

reconstructions, Freedom of Information Act requests, petitions to revise

VA regulations, testimony to scientific review boards, and multiple

hearings at all levels of the VA process before reaching its present stance

of a Court-ordered stay before the Court of Veterans Appeals. In a second

case by way of example, the Center represents an Air National Guardsman

exposed during Operation Plumbbob in 1957. This claim has been in

active, atlorney-represented litigation before the VA since 1979, and has

involved well in excess of 2,200 hours of attorney and expert time for

work which has included military archival research, epidemiological study

by the National Centers for Disease Control and Prevention, one official

and two independent dose reconstructions, two dose reconciliations by

outside consultants to the Department of Veterans Affairs. testimony to

scientific review boards, and multiple hearings at all levels of the VA

process before reaching its present stance of submission to the Board of

Veterans Appeals in October, 1991. The extensive attorney assistance

provided in these and many other exceedingly complex claims was

provided free of charge to the claimants and paid for by donations to the

Center from concerned individuals and charitable foundations as well as

the donated time of several attorneys, student interns and paralegal

professionals.

Veterans Due Process, Inc. is a non-profit veterans’

rights organization based at P.O. Box 68237, Portland, OR

97268. For the past decade, VDP has attempted to halt the

erosion of veterans rights to fair access to medical care and

disability compensation. Since the passage of the Econo..1y

Act in 1933, 28 U.S.C. § 21 1a, service-connected tort claims

have been the sole province of the VA system. VDP has

historically served as a bulwark to insure that the VA system is

kept fair and that administrative decisions are ultimately and

effectively subject to review by a fair and impartial judiciary.

REASONS FOR GRANTING THE WRIT

THIS CASE PRESENTS A SIGNIFICANT

MISCONSTRUCTION OF THE DECISION OF THIS COURT

WHICH, IF SUSTAINED, WILL IMPOSE FAR-REACHING

LIMITATIONS UPON THE RIGHTS OF VETERANS TO

RECEIVE FAIR AND MEANINGFUL ADJUDICATION OF

BENEFIT CLAIMS

When the Cold War ended, there were no ticker-tape

parades in the cities of America. Still, the heroes of America’s

longest war knew who they were. They were the tank

commanders in West Germany, the watchtower sentries in

South Korea, and the airmen in missile silos in Wyoming. If

Purple Hearts had been awarded to all the wounded, the single

largest group would have been the 233,000 servicemen whose

bodies were wounded by atomic radiation: the men and

women who put their bodies on the line in the defense of

freedom through credible nuclear deterrence.

All those wounded men and women have ever asked in

return is for fair and equal treatment with their compatriots

who have borne wounds in service to their country. Because

their claims are at the very frontier of science, however, such

compensation is seldom forthcoming. The appellant class

members in this case argue that the $10.00 fee limit, as applied

to Service Connected Death and Disability (““SCDD”) claimants

whose claims are based on exposure to ionizing radiation and

who are not covered by the Veterans’ Judicial Review Act of

1988, violates due process and the First Amendment because it

deprives claimants of a meaningful opportunity to present their

a

-6-

claims to the Veterans Administration (“VA”) and to petition

the government.

After considering the merits of this claim, the district court

held that the $10.00 fee limitation on attorneys’ fees imposed

by 38 U.S.C. §§ 3404 and 3405 (now codified as amended at

38 U.S.C. §§ 5904 and 5905) is unconstitutional as applied to

claims for benefits based on exposure to ionizing radiation.

National Ass'n of Radiation Survivors v. Derwinski, 782

F.Supp. 1392 (N.D. Cal. 1992).?

The rationale provided by the district court was founded

upon a number of considerations. Ionizing radiation (“IR’’)

claimants are generally poor, and in the cases of veterans

themselves, almost always in poor health. /d., (in petitioners’

Appendix to the Petition for Certiorari at 115, herein “‘a-115”).

Moreover, veterans’ law encompasses an extraordinarily

complex body of statutes, regulations, and other materials.

(Id. at a-115-116). The competent use of these materials is a

high-skilled task. (/d. at a-116). For IR claims in particular,

the claim development process is far more detailed and

complex than that for other SCDD claims. (/d. at a-117, a-

120-122). The typical medical issues are far more complex

than the average claimant, having less than a high school

education, is generally capable of understanding, not to

mention developing. (/d. at a-119).9

2 In National Ass'n of Radiation Survivors v. Walters, 473 U.S. 305,

105 S.Ct. 1380, 87 L.Ed.2d 220 (1985) (“NARS 1”), this Court declined

the Opportunity to reach a decision as to whether applicants for SCDD

benefits possessed a protected property interest in those benefits. In the

absence of that guidance, it is nOw assumed in many jurisdictions that an

applicant for disability benefits has a property interest in those benefits.

See, e.g. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990).

The district court below concluded that these appellants, as applicants,

possess a property interest protected by the Constitution. National Ass'n

of Radiation Survivors v. Walters, 589 F.Supp. 1302 at 1313-14 (N.D.

Cal. 1984); National Ass'n of Radiation Survivors v. Derwinski, 782

F.Supp. 1392 (N.D. Cal. 1992).

3 Said the district court:

continued...

The record indicates that the factual development of IR

claims conducted by VA regional offices is extremely limited.

An abstract of a randomi seiection of 674 IR claims files

introduced at tral indicates that no dose estimate was obtained

by the VA regional office in fifty-nine percent of IR cases and

that no physical exam was conducted in forty-eight percent of

the claims. (Ex. 461). In 509 of these cases the VA performed

no independent factual development due to the complicated

nature of IR claims and to the fact that the VA’s “work

product” schedule does not provide additional work credits for

IR claims. (Ex. 458). Thus, as the district court found, there is

an institutionalized incentive to underprepare the IR claims. (a-

132).

Recent decisions of the Court of Veterans’ Appeals

(“CVA”) in cases involving complex claims‘ illustrate that the

problems the district court identified remain evident, even after

the enactment of the Veterans’ Judicial Review Act of 1988

(“VJRA”), Pub.L.No. 100-687, 102 Stat. 4105 (1988). These

“In light of the complexity of the medical issues involved, disagreement

in the medical field with regard to cancer causation issues and the health

Note 3, continued...

effects of low level exposure to ionizing radiation, the difficulty of

disease classification and of discerning disease manifestation periods,

and conflicting evidence regarding the validity of radioepidemiological

tables employed by the VA and of other epidemiological data available

in the field, the court finds that proper presentation and adjudication of

IR claims will often require the marshalling of expert medical opinion

and testimony.”

National Ass'n of Radiation Survivors v. Derwinski, at a-122-123.

“The court further finds, based on the evidence demonstrating the

complexity of radiation dose reconstruction and the disagreements in the

field concerning the validity of film badge data and the development and

application of dose reconstruction methodology, that adequate

presentation and adjudication of IR claims will generally require

marshalling expert scientific and medical evidence in complex and

disputed areas of the fields implicated.”

Id. at a-128.

4 Cases involving, for example. claims based on exposure to ionizing

radiation, exposure to Agent Orange. and post traumatic stress disorders.

eee

ye

decisions underscore the importance of counsel at the early

stages of the VA claims process.

The CVA frequently has found, for instance, that the VA

failed to perform its statutory duty of assisting unrepresented

veterans. If veterans were allowed to retain counsel, they

would not have to rely for support on an institution with a

proven record of failing to assist them in developing the facts

pertinent to their claims. Developing the factual basis for

claims earlier in the process would likely result in those claims

being addressed on their merits sooner and reduce the number

of appeals taken. The VA adjudication system today, much as

when this case was tried in 1988, frequently denies veterans

with complex claims their procedural and substantive nghts.

Recent CVA decisions also reflect that the Board often

ignores controlling statutes and its own regulations.® Even

when following regulations, the Board often bases its

decisions on its own unsubstantiated conclusions rather than

5 See, e.g.: DiBenedetio v. Brown, 4 Vet. App. ___, 1993 Vet App.

LEXIS 404 (July 13, 1993); King v. Brown, 4 Vet. App. 519 (1993);

Ascherl v. Brown, 4 Vet. App. 371 (1993); Booth v. Brown, 4 Vet. App.

280 (1993); Culver v. Derwinski, 3 Vet. App. 292 (1992); Trytek v.

Derwinski, 3 Vet. App. 153 (1992); Schfrath v. Derwinski, | Vet. App.

589 (1991); Ashmore v. Derwinski, 1 Vet. App. 580 (1991); Sagainza v.

Derwinski, 1 Vet. App. 575 (1991); Parker v. Derwinski, 1 Vet. App.

522 (1991); White v. Derwinski, 1 Vet. App. 519 (1991); Hanson v.

Derwinski, 1 Vet. App. 512 (1991); Godwin v. Derwinski, 1 Vet. App.

419 (1991); Travelstead v. Derwinski, 1 Vet. App. 344 (1991); Karnas v.

Derwinski, 1 Vet. App. 308 (1991); Morris v. Derwinski, 1 Vet. App.

260 (1991); Hyder v. Derwinski, | Vet. App. 221 (1991); Wood v.

Derwinski, 1 Vet. App. 190 (1991); Corchado v. Derwinski, 1 Vet. App.

160 (1991); Mvers v. Derwinski, 1 Vet. App. 127 (1990); Green v.

Derwinski, 1 Vet. App. 121 (1990); Akles v. Derwinski, 1 Vet. App.

118 (1991); Linke v. Derwinski, 1 Vet. App. 90 (1990); Murphy v.

Derwinski, | Vet. App. 78 (1990); Gilbert v. Derwinski, 1 Vet. App. 49

(1990); Jolley v. Derwinski, 1 Vet. App. 37 (1990).

® See, e.g.: Servello v. Derwinski, 3 Vet. App. 196 (1992); Cosman vy.

Principi, 3 Vet. App. 503 (1992); Hohol v. Derwinski, 2 Vet. App. 169

(1992); Douglas v. Derwinski, 2 Vet. App. 103 (1992); Sawyer v.

Derwinski, 1 Vet. App. 103 (1991); Fugere v. Derwinski, | Vet. App.

103 (1990); Bentley v. Derwinski, 1 Vet. App. 28 (1990).

= 3

on the evidence before it.’ In one IR claim, the Board

discarded the standard of proof established by Congress for

dismissing radiation claims—’’no reesonable possibility” of

service-connection—and inserted its own -~’absence of

probability’—standard to make the burden more difficult for

the claimant. Sawyer v. Derwinski, 1 Vet. App. 103 (1991).

These problems would be alleviated to a great degree if

attomeys were available earlier in the process to brief the often

complex issues before the Board. Veterans raising complex

claims pro se, generally without the benefit of legal training

and almost invariably suffering from debilitating diseases, are

left without guidance when the Board disregards the law.

Often such veterans are incognizant of their legal position;

rarely are they able to prepare the legal arguinents necessary to

persuade the Board to follow the law or to challenge the lack

of evidentiary basis for Board decisions.

When this Court last examined the veterans’ appeals

process, it found that the process was “designed to function

throughout with a high degree of informality and solicitude for

the claimant.” NARS J, supra. The number of cases now

being disposed of by the Board and the CVA on procedural

and jurisdictional grounds belies this conclusion. The VA

7 See, e.g.: Romeo v. Brown, 4 Vet. App. __, 1993 Vet. App. LEXIS

338 (August 6, 1993); Mee v. Brown, 4 Vet. App. 220 (1993); Cosman

v. Principi, 3 Vet. App. 503 (1992); Cleary v. Principi, 3 Vet. App. 495

(1992); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992); Williams vy.

Brown, 4 Vet. App. 270 (1993); Watson v. Brown, 4 Vet. App. 189

(1993); Stein v. Derwinski, 2 Vet. App. 517 (1992); Philbricky.

Derwinski, 2 Vet. App. 466 (1992); Fisher v. Derwinski, 2 Vet. App.

406 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Sheed v.

Derwinski, 2 Vet. App. 255 (1992); Crandall v. Derwinski, 2 Vet. App.

113 (1992); Cousino v. Derwinski, | Vet. App. 536 (1991); Colvin V.

Derwinski, | Vet. App. 171 (1991); Gilbert v. Derwinski, 1 Vet. App.

49 (1990).

8 The effect of not having attormeys to guide claimants through the often

arcane casuisteries of the IR claims process ts clear from the number of

cases reaching appellate courts with insufficient development or attention

to procedural and jurisdictional prerequisites. See, e.g.: Waddell v. Brown,

4 Vet. App. ___, 1993 Vet. App. LEXIS 457 (September 7, 1993);

Ephraim v. Brown, 4 Vet. App. __, 1993 Vet. App. LEXIS 465

(September 16, 1993); Abernathy v. Principi, 3 Vet. App. 461 (1992);

-10-

appears to be relying increasingly on formality as a tool to

manage its growing appellate caseload. So, for instance, a

100-percent service-connected psychiatrically disabled

veteran—with diminished mental capacity to deal with matters

pertinent to his claim—had his appeal dismissed because a VA

official assisting the claim missed a filing deadline. Roy v.

Brown, 4 Vet. App. ___, 1993 Vet. App. LEXIS 506

(September 24, 1993). This is not an isolated incident.

Claimants now more than ever require attorneys to guide them

through the legal obstacles posed by increasingtly complicated

VA regulations and CVA decisions.

Contrary to the pre-trial supposition of this Court in NARS

I, the just cited cases, as well as the two month trial before the

district court, demonstrated that the mass of claims processed

by the Veterans Administration does incorporate high

probability of error. NARS v. Derwinski at a-134; and see:

Abrams, Complex Statutory Scheme Creates Heartache and

Heartbreak for Radiation Claimants, The Veterans Advocate,

4:8:61-66 (Apmil, 1993).

In light of the complex medical and scientific issues

involved, the difficulty of obtaining appropriate records, and

the limited ability of a lay-claimant or service representative to

comprehend the relevant issues, the trial court found that the

right to retain counsel was the only means available to provide

claimants effective representation.

The government argued before this Court in 1984 that the

non-adversarial adjudication system serves to safeguard

claimants’ interests. Instead, the district court found that the

VA's adjudication of IR claims is more accurately

characterized as adversarial.”

Drenkhahn vy. Derwinski, 2 Vet. App. 207 (1992); DiDonato \

Derwinski, 2 Vet. App. 42 (1992); Sudranski v. Derwinski, 1 Vet. App

457 (1991); Magula v. Derwinski, 1 Vet. App. 76 (1990); Strotr v.

Derwinski, | Vet. App. 114 (1991); Doub v. Derwinski, | Vet. App. 17

(1990); Skinner v. Derwinski, 1 Vet. App. 2 (1990).

? Said the district court:

“The record is replete with examples of the VA’s lack of solicitude for IR

claims and agency behavior that demonstrates a disregard tor the procedural

oe

There is no safety in assuming that charitable services can

fill the void and provide any better representation. As the

district court observed, .

While service representatives undoubtedly are well-

intentioned, their “crushing” caseloads make effective

representation of claimants with complicated IR claims

virtually impossible. Ex. 70. For example, the Disabled

American Veterans employed ten appeals-level service

representatives who handled 17,954 claims in Fiscal Year

1986; the two representatives of the AmVets presented

1304 claims to the BVA the same year. RT at 1780-82,

Ex. 263.

Training of service representatives is very limited, and they

receive no specialized training in the intricacies of IR

claims. RT at 1174-75,1177. As a result, service

representatives often do not detect errors in VA denials of

IR claims. RT at 11 78-83.

Note 9 continued...

and substantive rights of IR claimants. See, e.g., RT at 1086-94. For

example, there is evidence that the VA actively discourages IR claimants

from invoking their right to a hearing where they could more fully present

their claims, provide expert medical and scientific testimony and respond

to rating board concems. Ex. 18 at 11,17 at 137-39,1042. Personal

hearings are held in only 5.69% of IR claims. In less than one percent of

the cases are those hearings held prior to the VA’s initial determination.

RT at 250. IR claimants are discouraged from requesting hearings despite

the fact that the evidence shows that those claimants who have hearings

have a substantially higher success rate than those who do not. RT at

248-50.

“The record indicates that, either by design or neglect, the VA has operated

in such a manner so as to frequently put the claimant at a disadvantage in

the adjudication process. Materials important to development of an IR

claim often are not made available at VA regional offices. RT at 258. The

vast array of materials, General Counsel opinions, and other

documentation relevant to IR claims are not indexed so as to make them

accessible to a lay-claimant. /d. And pattern letters sent to the IR claimant

solicit information adverse to the claim without requesting information

tending to prove it.”

Id. a-132-133.

ceil

$23

In addition, the evidence shows that service representatives

do little in the way of fact development for IR claims,

instead relying almost exclusively on the claimant to

marshal the complicated array of materials and information

necessary to successfully present a claim. RT at 1107:23-

1108:5,1704:22-1707:2,1712. For example, service

representatives rarely obtain independent medical exams

for claimants. RT at 1706. Worse yet, it appears that in

most cases service representatives do not meet with the

claimant before a rating decision is made. RT at 1708.

Service representatives rarely request a hearing for the

claimant before the rating board and often discourage

veterans from requesting a hearing prior to denial of the

claim by the regional office. RT at 1150,1730, Ex. 236.

The record suggests that in those instances where a service

representative does obtain a hearing for the claimant and

represents the claimant, the representative often does not

perform effectively as an advocate. RT at 1149-50,1 160-

65,1736. Frequently, the representative meets with the

claimant for the first time one hour prior to the hearing. RT

at 1149.

The evidence also indicates that service representatives are

not an effective safeguard in appeals of claim denials

before the BVA. Service representatives frequently fail to

notify claimants of their right to appeal, and as a result,

claimants often fail to exhaust their administrative

remedies. RT at 1714. Where the claimant is advised of his

or her right to appeal, in most cases the claimant fills out

the substantive appeal form without the assistance of the

service representative. RT at 1159-60,1724. This occurs

despite the fact that the claimant is deemed to accept any

factual finding in the Statement of the Case not disputed in

the substantive appeal form. Service representatives rarely

request hearings on behalf of the IR claimant before the

BVA. RT at 1733. Appeals briefs prepared by service

representatives are often inadequate. RT at 1158.

In sum, the evidence strongly suggests that there is little

difference in quality between claims prepared solely by the

IR claimant and those prepared with the assistance of a

oe.

service representative. RT at 1169. The deleterious effects

of the service representatives’ almost total reliance on the

claimant is magnified by the fact that the average veteran

claimant has only an eleventh grade education. Ex. 461.

a-134-135.

Based on the evidence presented at tral, the district court

found unequivocally that attorneys would perform far better

than volunteer service representatives in other areas which are

key to proper presentation of an IR claim. (a-136). Indeed, IR

claimants who have received the benefit of attorneys have had

2400% higher success rates than those have not.

This Court has previously recognized the possibility that

the fee limitation might be found unconstitutional as it applied

to “some discrete class of complex cases.” NARS /, 473 U.S.

at 337,105 S.Ct. at 3198. The cautious analysis of the district

court’s opinion amply demonstrates that, because of the

extreme complexity of governing law, applicable procedures,

medical and scientific issues, and necessary factual

development, IR claims are exceptionally complex and are thus

distinguishable from those of the typical VA benefits claimant.

This Court, in reversing the preliminary injunction, found

that the rationale for the limitation was

that the system for administering benefits should be

managed in a sufficiently informal way that there

should be no need for the employment of an attorney to

obtain benefits to which a claimant was entitled, so that

the claimant would receive the entirety of the award

without having to divide it with a lawyer.

Id. at 321, 105 S.Ct. at 3189. Fearing that “destruction of the

fee limitation would bid fair to complicate a proceeding which

Congress wished to keep as simple as possible” and that the

VA adjudication system would be “rendered more adversary

and more complex by the very presence of lawyer

representation,” the Court accorded great weight to the

government interest. /d. at 326, 105 S.Ct. at 3191.

————————<o—

-14-

Chief Justice Rehnquist's analysis implies that the real goal of

the fee limitation was to prevent attorneys from participating in

the adjudication of veterans’ benefit claims, since only this

would realize the governmental interest identified by the Court,

i.e., preserving the “simple” nature of the procedures by

keeping attorneys out. In fact, as Justice Stevens pointed out

in his dissent in NARS J, the purpose of the fee limitation

when enacted was not to prevent the employment of reputable

counsel but instead to protect veterans from unscrupulous

lawyers. 473 U.S. at 360, 105 S.Ct. at 3210 (Stevens, J.,

dissenting). A $10 fee in 1862, the year the fee limitation was

enacted, was roughly equivalent to a $580 fee today. /d. at

361,10; S.Ct. at 3210. Thus, the fee limitation initially

allowed for the employment of an attorney by a veteran

claimant, while the fee limitation at present does not.

The handicap that the ongoing legal construction has

provided is a legacy of waste and inefficient use of scarce

judicial resources. Fully 65 percent of cases reaching the Court

of Veterans Appeals are filed pro se, a situation which Chief

Judge Frank Nebeker has termed “a serious problem which

adversely affects this Court, the community of our nation’s

veterans, and the achievement of the goals which prompted the

100th Congress to institute judicial review of veterans’

benefits decisions.”!° A similar problem has confronted the

Board of Veterans Appeals, which will only issue some

27,600 decisions this year, down from 45,308 in 1991,

despite a rise in the number of cases docketed. The average

response time at the BVA has risen from 139 days in 1991, to

240 days in 1992, to 441 days in 1993, an escalating delay

factor which the Secretary of Veterans Affairs ascribes to the

increasing complexity of the “evolving body of case law”

emanating from VJRA.!! The Secretary's solution is to ask

Congress for millions of additional tax dollars to help BVA

deal with all of these pro se claimants. A simpler and more

straightforward solution would be to permit these claimants to

exercise their right to retain counsel.

10 | etter. Frank Nebeker to Alan Cranston, October 23, 1991.

'l Letter, Jesse Brown to Thomas S. Foley, August 13, 1993.

a”

As Justice Stevens reminds us,

“[ T]he citizen’s nght to consult an independent lawyer and

to retain that lawyer to speak on his or her behalf is an

aspect of liberty that is priceless. It should not be

bargained away...”

a-89.

CONCLUSION

For the reasons described in the foregoing, the petition for

certiorari should be granted.

Respectfully submitted,

ALBERT K. BATES E. COOPER BROWN

556 Farm Road 6935 Laurel Ave Su 204 j

Summertown, TN 38483 Takoma Pk MD 20912

615- 964-3992 202-775-8786

| Attorneys for Amici Curiae

CERTIFICATE OF SERVICE

I certify that true copies of the foregoing have been served

upon Counsel for the Parties by first class mail, postage

prepaid, this 14th day of October, 1993.

4] ?

of Joon K. Haves

Albert K. Bates

The Natural Rights Center

Summertown TN 38483-0090

(615) 964-3992

a |