Veterans for Common Sense et al v. Nicholson et al

Filing 129

Veterans for Common Sense et al v. Nicholson et al

Doc. 129 Att. 4

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being, under 5 U.S.C. 8128@), determinations concerning benefits § under the Federal Employees Compensation Act), it is both unjustifiable and fundamentally unfair to deny to veteran claimants such a common and highly valued ri ht; (2) although such disparate treatment may a t one time have een justifiable on the basis that veterans' benefits were considered to be, as stated in Hahn v. Gray, 203 F.2d 625, 626 (D.C. Cir. 19531, "mere gratuities," this notion must be considered to have been substantially eroded by the decision in Goldberg v. Kelly, 397 U.S.254 (1970), in which t h e Supreme Court held that welfare benefits are more in the nature of a right than a privilege for purposes of due process protections; and (3) although the Committee has great confidence in the competence and good faith of the individual adjudicators and the adjudicative bodies within the VA, there is and will inevitably continue to be some proportion of cases, however small, that are wrongly decided by the BVA, where the only hope for correcting the resuiting injustice lies in judicial review. The Commi.ttee emphasizes that its attitude toward judicial review should not be construed as a major criticism of the way claims are presently adjudicated by, or veterans represented before, the VA. Rather, it reflects a faith in the system of checks afid balances embodied in Federal court review, a system which can only enhance the likelihood t h a t the truth will be found and a correct and just decision reached, and which, a t the very least, will help overcome the perception, in some claimants' minds, t h a t the present claims adjudication process is unfair in denying veterans their "day in court." As was stated by Mr. Ronald Simon on behalf of The National Veterans Law Center a t the Committee's hearing on July 15, 1981: The existence of a Supreme Court does not imply the inad, arbitrariness, or wrongness of the lower courts. Nor oes the existence of the judicial system imply the wrongness or illegality of the other branches. The existence of the courts and legal system of which they are a part is merely the way in which disputes are re.solved in i our society. . . . Unfortunately, the prohibition against judicial review has led t a a special status for the VA in the miMs of veterans an4 the public. The product of the pphibition against jqiicial review is mistrust, suspicion arid lack of confidenceir . . . Review by the courts would provide an explanation of decision-making and a ventilation of the frustrations oe'veterans. Thus, in light of all the relevant considerations, the Committee continues to believe t h a t providing a n opportunity for those aggrieved by VA:idecisions to have such decisions reviewed by a court, in a manner similar to t h a t enjoyed by claimants before almost all k other Federal agencies, is necessa?~ n brd;e'r-to provide such claima n t s with fundamental justice. To continue to inform claimanb before the VA that benefits to which they are. entitled, by law could be wrongly deljried and t h a t there is no remedy for suqh a wrongful denial, is no Gnger a viable position. In addition, the Committee believes t h a t judicial review, by opening t h e decisionqof the VA to

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