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November 21, 1991

NATIONAL ASSOCIATION OF RADIATION SURVIVORS, et al., Plaintiffs, -v.- EDWARD J. DERWINSKI, Secretary of Veterans Affairs, et al., Defendants.

The opinion of the court was delivered by: MARILYN HALL PATEL

 Plaintiffs have brought this action to challenge the constitutionality of 38 U.S.C. §§ 3404 and 3405 (now codified as amended at 38 U.S.C. §§ 5904 and 5905), which limit the fee a veteran or veteran's survivor may pay to an attorney to assist him or her in prosecuting a claim before the Veterans Administration ("VA") to $ 10.00, and which impose criminal penalties on attorneys who accept fees in excess of the $ 10.00 limit. By order of June 12, 1984, this court granted plaintiffs' motion for a preliminary injunction prohibiting the enforcement of the $ 10.00 fee limit. National Ass'n of Radiation Survivors v. Walters, 589 F. Supp. 1302 (N.D. Cal. 1984) ["NARS I"]. The Supreme Court reversed, holding that the fee limit was not unconstitutional on its face. Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 87 L. Ed. 2d 220, 105 S. Ct. 3180 (1985) ["NARS II"]. However, the Court's opinion left open the possibility that, on remand, plaintiffs would be able to show that the fee limit was unconstitutional as applied to particular classes of complex claims. See NARS II, 473 U.S. at 337-38 (O'Connor, J., concurring).

 On remand, plaintiffs amended their complaint to challenge the constitutionality of the fee limit as applied to claimants with service-connected disability or death ("SCDD") compensation claims based on exposure to ionizing radiation. This court granted plaintiffs' motion for certification of a class consisting of "all past, present and future ionizing radiation claimants who have, or will have, some form of 'active' claim relating to SCDD benefits before the VA." National Ass'n of Radiation Survivors v. Walters, 111 F.R.D. 595, 598 (N.D. Cal. 1986) ["NARS III"]. After extensive pretrial proceedings, the matter was tried to the court over a period of nearly two months. The trial included testimony by numerous expert witnesses regarding the medical, scientific and legal complexities characteristic of ionizing radiation claims.

 During and after the trial Congress worked to change the manner in which veterans' claims were adjudicated and reviewed. After adoption of the Veterans' Judicial Review Act of 1988, Pub. L. No. 100-687, 102 Stat. 4105 (1988), the parties went to great lengths to settle this action in light of the new legislation. *fn1" Ultimately, the efforts to settle were unsuccessful and the parties returned to this court for a decision on the merits based upon the trial record and other post-trial submissions.

 Having considered the evidence presented at trial and the arguments of the parties, and based on the findings of fact and conclusions of law set forth below, the court holds 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 SCDD claims for benefits based on exposure to ionizing radiation.

 Plaintiffs argue that the $ 10.00 fee limit, as applied to 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 claims to the VA and to petition the government.

 A court faced with a procedural due process challenge must initially determine whether the plaintiffs possess a life, liberty or property interest protected by the Constitution. In reversing this court's order granting a preliminary injunction, the Supreme Court found it unnecessary to decide whether applicants for SCDD benefits possessed a protected property interest in those benefits. NARS II, 473 U.S. at 320 n.8. This court sees no reason to disturb its earlier determination that both recipients of and applicants for SCDD benefits possess a property interest protected by the Constitution. See NARS I, 589 F. Supp. at 1313-14. Indeed, the Ninth Circuit's decision in Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990), in which the court ruled that an applicant for social security disability benefits has a property interest in those benefits, buttresses this court's earlier ruling.

 Once a court has concluded that the plaintiffs possess a protected interest, the court must examine the procedures provided for the protection of that interest to determine whether they meet the requirements of a due process challenge. See NARS II, 473 U.S. at 320. Determining what process is due requires consideration of the three factors set forth in Mathews v. Eldridge:

 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); see NARS II, 473 U.S. at 321.

 A deprivation of a liberty or property interest is not required as a premise for a First Amendment claim. Perry v. Sindermann, 408 U.S. 593, 596-98, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Moreover, "the right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances." Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989). The Supreme Court has held that the First Amendment protects efforts by organizations and individuals to obtain legal representation for themselves or their constituents. The First Amendment protects union members' efforts to advise workers to obtain legal advice and to recommend specific lawyers, Brotherhood of Railroad Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1. 8-9, 12 L. Ed. 2d 89, 84 S. Ct. 1113, reh'g denied, 377 U.S. 960, 12 L. Ed. 2d 505, 84 S. Ct. 1625 (1964); the employment of counsel by unions to represent their members, United Mine Workers of America Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 221-22, 19 L. Ed. 2d 426, 88 S. Ct. 353 (1967), United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 580-85, 28 L. Ed. 2d 339, 91 S. Ct. 1076 (1971); and the efforts of non-profit organizations to provide legal representation for persons seeking to vindicate their civil rights. NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 (1963).


 I. Evidence Relevant To The Private Interest Affected

 In light of this evidence, the court finds that a substantial majority of IR claimants would rely primarily on SCDD benefits for their basic maintenance and support.

 II. Evidence Relevant To The Risk Of Erroneous Deprivation

 A. Complexity of Governing Law and Procedures

 IR claims, like other SCDD claims, are adjudicated within the framework of existing Veterans Administration ("VA") rules and regulations. In addition, a series of special VA rules and regulations have been promulgated specifically to address IR claims.

 Veterans' law encompasses an extensive body of statutes, regulations, and other materials. RT at 23:2-27:4, 28:5-35:1, 38:8-40:4, 40:10-41:20, 50:17. The principal applicable statute is 38 U.S.C. §§ 1-7298 (formerly 38 U.S.C. §§ 1-4008). SCDD claims are also governed by regulations codified in the Code of Federal Regulations; a body of VA General Counsel opinions and Board of Veterans' Appeals ("BVA") decisions; VA circulars; and adjudication and program manuals. RT at 23-27. These materials interface with each other and form a complex web of governing authority. RT at 71.

 The competent use of these materials is a laborious task. For example, it is necessary to monitor the Federal Register for changes in governing regulations. RT at 27. General Counsel opinions are not digested, making them difficult to research and access. RT at 32. There are numerous relevant agency manuals, including the VA Adjudication Manual (M21-1), Ex. 456, which addresses agency adjudication procedures; the VA Program Guide (PG21-1), Ex. 459; the MBVA Manual, Ex. 457, which covers areas over which the BVA has jurisdiction; and the Field Appellate Procedure Manual (M21-4), Ex. 458, which regulates the conduct of hearings in the VA's regional offices. RT at 38-40, 44. The manuals are lengthy and it is often difficult to gain access to them. *fn2"

 Under the federal regulations governing SCDD claims, an IR claimant must "submit evidence sufficient to justify a belief in a fair and impartial mind that the claim is well grounded." 38 CFR § 3.102. The claimant must demonstrate not only that the disability exists or that the death occurred, but also that the disability or death is "service-related." 38 U.S.C. § 1101 et seq.

 In addition to these general regulations, in 1985 the VA adopted a special set of regulations for IR claims in response to the mandate of P.L. 98-542. These regulations are codified in 38 CFR § 3.311b. Section 3.311b sets forth three prerequisites that must be met in order for an IR claim to be referred to the Chief Benefits Director for further consideration: (1) that the veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, occupation of Hiroshima or Nagasaki, Japan from September 1945 until July 1946, or other activities as claimed; (2) that the veteran subsequently developed one of seventeen diseases enumerated in the regulation; and (3) that the disease first became manifest within periods specified in the regulation. *fn3" Where the threshold criteria are not met, a claimant may still attempt to prove his or her claim by invoking section 3.304, the general VA regulation concerning direct service connection, or section 3.309, the general VA regulation which creates presumptive service connection for certain diseases manifesting to a designated degree within a specified period after separation from service. RT at 146:23-147:3.

 The record indicates that the claim development process for IR claims is far more detailed and complex than that for other SCDD claims. If the VA regional office to which an IR claim is submitted determines that the claim meets the three threshold requirements of section 3.311b, the claim is then subjected to a review process. The regional office sends the claimant a "pattern" letter requesting detailed information regarding his or her claim. The pattern letter sent to IR claimants has more questions and requests more complicated information than the pattern letter sent in other SCDD claims. RT at 74, Ex. 456 at 22-6, Ex. 751. If the claimant does not respond to the pattern letter within sixty days the claim may be administratively disallowed for failure to prosecute. RT at 190, Ex. 465, 970.

 The regional office then refers the claim to the Defense Nuclear Agency ("DNA") of the Department of Defense to obtain an estimate of the radiation dose level to which the claimant was exposed. 38 CFR § 3.311b(a)(2)(i)-(ii). The general procedures followed by the DNA, including dose reconstruction methodology and dose estimate reporting standards, are codified in 32 CFR § 218.1 et seq. If the claimant obtains an independent dose estimate from a "credible source" and that estimate is at least double the estimate provided by the DNA, the regional office will refer the case to an independent expert for a dose reconciliation. 38 CFR § 3.311b(a)(3).

 Upon completion of the dose estimate by the DNA, the completed file is then submitted to the Administrative Review Staff ("ARS") of the Compensation and Pension Service ("CPS"). See Ex. 305, M21-1, Section 22.05.1(a)(3). In general, non-IR claims are not submitted to the CPS. The ARS reviews the claim and the CPS furnishes a recommendation for either denial or allowance of the claim to the regional office. Ex. 305, M21-1, Section 22.05(e)(3). The rating board of the regional office must consider the CPS recommendation prior to making a final decision on the claim. Ex. 305, M21-1, Section 22.05.2(e)(4).

 Once the rating board of the regional office has made a determination regarding the claim, it issues a Notice of Decision ("ND") to the claimant. 38 CFR § 3.103. The rating decision is based on a complicated schedule containing detailed anatomical data and other criteria. 38 CFR § 4.1 et seq. If the claim is denied, the claimant may file a Notice of Disagreement ("NOD") within one year of the mailing of the ND; if no NOD is timely filed, the ND is deemed final. 38 CFR § 19.129(a). If an NOD is timely filed, the regional office will reconsider its decision. If the denial is affirmed, the regional office issues a Statement of the Case ("SOC"), stating the basis for the denial. 38 CFR § 19.120.

 The claimant has sixty days from the issuance of the SOC or the remainder of one year from the mailing of the ND to file an appeal. 38 CFR § 19.129(b). The appellant is not presumed to be in agreement with any statement of fact in the SOC to which the appellant does not specifically express agreement. 38 U.S.C. § 7105(d)(4). However, the claimant's appeal must set out specific factual or legal grounds for the appeal. 38 CFR § 19.123(a).

 The claimant's appeal is reviewed by the BVA. If the BVA denies the appeal, the claimant may move to reconsider when there has been an obvious legal or factual error or when new evidence is discovered. 38 CFR §§ 19.104, 19.185. The claimant may also reopen the claim at the regional office level with new and material evidence.

 The claimant is entitled to a hearing, upon request, "at any time on any issue involved in a claim . . . ." 38 CFR § 3.103(c). The claimant is also allowed at all stages to introduce documentary, testimonial or other evidence. 38 CFR § 3.103(d).

 The evidence before the court shows that the medical issues present in IR claims are far more complex than those in other SCDD claims and that the average claimant is not capable of understanding the medical intricacies of an IR claim.

 The record reflects that there is a wide array of conflicting expert opinion in an extensive body of medical literature concerning the relationship between cancer and ionizing radiation. The evidence in this case shows disagreement about the following issues: (1) the degree of risk associated with exposure to low levels of ionizing radiation; (2) the latency periods between radiation exposure and the manifestation of certain cancers; (3) the shape of the dose-response curve for exposure to low levels of ionizing radiation; (4) the susceptibility of certain organs and tissue to cancer induction through exposure to ionizing radiation; (5) the manner in which different carcinogenic agents interact and function synergistically; (6) the validity of, and how to interpret, existing epidemiological data on the health effects of exposure to ionizing radiation; (7) the validity of reports produced by groups such as the BEIR III Committee and the United Nations Special Commission On The Effects Of Atomic Radiation ("UNSCEAR"), which the DNA and VA rely on as authoritative sources of data regarding radiation exposure; *fn4" and (8) the validity of radioepidemiological tables relied on by the VA. RT at 621, 622, 626:2-628:3, 660-62, 1573, 3972-73, 683, 3966-87, 1578:8-25, 4768:8-4794:19, 611-12, 659:14-660:12, 675:1-7, 1574:18-1578:7, 4824:22-4826:5. See Exs. 1163, 1164, 1166, 1193, 1228, 1283, 1290, 1330, 1332, A-6092.

 While the court need not address each of these issues, several key areas of complexity are examined below to illustrate the complicated nature of the medical issues involved in IR claims.

 1. Complexity of Causation Issues

 Because cancers are synergistic, the evaluation of different risk factors is an inherently complicated endeavor. RT at 602-03, 3256:25-3257:24, 4738:11-4739:10. The examination of a malignancy, for example, will not reveal the cause of the cancer in question. RT at 604. Thus, determining whether exposure to ionizing radiation contributed to the causation of cancer is extremely complex. The record reflects that making such a determination requires consideration of numerous factors, including the circumstances of exposure; the amount and rate of radiation exposure; the type of radiation received (gamma, beta, alpha, neutron, low LET and high LET); *fn5" the pathways of radiation exposure; the duration of exposure; the age at manifestation of the disease; the nature of the veteran's disease; the effects of other risk factors and of exposure to other carcinogenic agents; the medical history of the veteran; the latency period between exposure and disease manifestation; the veteran's health at the time of exposure; the veteran's gender; and whether the veteran manifested acute symptoms of radiation exposure just after exposure. RT at 631:5-637:8, 1526:6-1528:14, 2308:13-2310:11, 2317:12-2318:22, 2319:25-2326:22.

 Experts disagree on numerous issues with regard to cancer causation. RT at 605-06. For example, the record reflects disagreement among the expert witnesses of plaintiffs and defendant as to whether all cancers may be caused by radiation and whether certain organs may be excluded from the list of radiation-induced cancers. RT at 621, 4000-02.

 2. Complexity of Disease Classification And Manifestation Issues

 The evidence before the court indicates that determining whether a claimant's condition is covered by one of the diseases listed in the ionizing radiation regulations can present complex issues of disease classification. *fn6" RT at 1486:10-1494:13, 1503:1-1515:15. Statistics introduced into evidence by the plaintiffs indicate that forty-nine percent of IR claimants who claim disability due to radiation exposure suffer from diseases not included in § 3.311b(b)(2). Ex. 460.

 Assessing the period of time from exposure to manifestation of a disease is also a difficult task. RT at 683. One complication is caused by the fact that the IR regulations do not specify what is meant by manifestation; thus, manifestation may be defined as the date of cell damage, the date of pre-diagnosis manifestations, the date of onset of symptoms, or the date of diagnosis. RT at 1494:14-1502:3. Determining the date of cell damage, pre-diagnosis manifestations and the date of the onset of symptoms may require numerous tests and an exacting assessment of an array of medical factors. RT at 1494:14-1502:3. There is evidence in the record of claim denials based on erroneous interpretations of the regulatory manifestation periods by the VA. RT at 88, Ex. 922.

 3. Validity Of Radioepidemiological Tables

 Radioepidemiological tables have been developed by the National Institute of Health (NIH) to provide estimates of the probability of causation for various radiogenic diseases based on differing levels of exposure to radiation. The tables are relied on by the VA in assessing IR claims.

 The evidence before the court demonstrates that experts disagree as to the validity of the tables. Plaintiffs' expert witnesses testified that use of the tables was inappropriate in deciding individual IR claims. Among the criticisms of the tables are that (1) they underestimate the risks of exposure to ionizing radiation, RT at 675:1-7; (2) they fail to take account of consequences of exposure to high LET radiation, RT at 673:22-674:2, 3267:7-14; (3) they fail to take into account factors important in evaluating causation, RT at 1543:20-24; (4) they fail to take into account regional variations in ...

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