A-6470, APRIL 7, 1926, 5 COMP. GEN. 799

A-6470, APRIL 7, 1926, 5 COMP. GEN. 799

VETERANS' BUREAU - DISABILITY COMPENSATION - CONCLUSIVE PRESUMPTION OF SOUNDNESS WAR RISK DISABILITY COMPENSATION IS NOT PAYABLE UNDER THE CONCLUSIVE PRESUMPTION OF SOUNDNESS CLAUSE IN SECTIONS 202 OF THE WORLD WAR VETERANS' ACT DURING HOSPITALIZATION FOR DISABILITY ARISING AFTER TERMINATION OF MILITARY SERVICE AND RESULTING FROM A MISCONDUCT DISEASE WHERE THE EVIDENCE INTRODUCED IN AN ATTEMPT TO SHOW ABSENCE OF MISCONDUCT DISCLOSES THAT THE DISABILITY DEVELOPED FROM PRIMARY INFECTION PRIOR TO MILITARY SERVICE, FOR THE REASON THAT THE SERVICE CONNECTION OF THE DISABILITY HAS NOT BEEN ESTABLISHED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 7, 1926:

THERE HAS BEEN RECEIVED YOUR LETTER OF FEBRUARY 4, 1926, SUBMITTING FOR SETTLEMENT VOUCHER COVERING THE AMOUNT OF $765.16 IN FAVOR OF H. F. CLELAND, ADMINISTRATOR OF THE ESTATE OF MIKE C. CARPENTER, REPRESENTING DISABILITY COMPENSATION FOR THE PERIOD JUNE 7, 1924, TO MAY 8, 1925.

THE CLAIM OF MIKE C. CARPENTER WAS MADE THE SUBJECT OF A DECISION OF JULY 24, 1925, 5 COMP. GEN. 51. THE FACTS ON WHICH THAT DECISION WAS BASED WERE REPORTED IN PART AS FOLLOWS:

THE CASE OF MIKE C. CARPENTER IS ONE OF THE TYPE INCLUDED IN THIS QUESTION. THE CLAIMANT IS NOW SUFFERING FROM GENERAL PARESIS. THERE WAS NO NOTATION MADE OF THIS DISABILITY OR RELATED DEFECT, DISORDER, OR INFIRMITY AT THE TIME THE CLAIMANT ENTERED SERVICE, DURING HIS SERVICE, OR AT DISCHARGE. IN A REPORT MADE ON SEPTEMBER 5, 1923, MORE THAN FOUR YEARS AFTER THE CLAIMANT'S DISCHARGE, THE CLAIMANT GAVE A HISTORY OF HAVING A PRIMARY INFECTION IN 1912. * * *

IT WAS NOT REPORTED AT THAT TIME THAT THE CLAIMANT WAS BEING HOSPITALIZED IN A VETERANS' BUREAU HOSPITAL. ON THE BASIS OF THOSE FACTS IT WAS CONCLUDED IN THE DECISION AS FOLLOWS:

* * * IN THE CASE OF MIKE C. CARPENTER YOU DO NOT STATE DEFINITELY WHETHER THERE IS OR IS NOT INVOLVED THE ELEMENT OF MISCONDUCT. IT IS EVIDENT, HOWEVER, FROM YOUR ENTIRE STATEMENT, THAT MISCONDUCT IS INVOLVED. IF GENERAL PARESIS RESULTED FROM A VENEREAL DISEASE, THE RECORD EVIDENCE OF PRIMARY INFECTION IN 1912 WOULD PRECLUDE THE CLAIMANT FROM ESTABLISHING HIS CLAIM AS REQUIRED UNDER RULE (1), ANNOUNCED IN DECISION OF APRIL 3, 1925.

YOU NOW REPORT ADDITIONAL FACTS AS FOLLOWS:

AN AWARD WAS APPROVED IN FAVOR OF H. F. CLELAND, ADMINISTRATOR OF THE ESTATE OF MIKE C. CARPENTER, AUTHORIZING PAYMENT OF COMPENSATION FOR THE PERIOD FROM JUNE 7, 1924, TO MAY 8, 1925, BETWEEN WHICH DATES CARPENTER WAS PERMANENTLY AND TOTALLY DISABLED, INSANE, AND RECEIVING HOSPITALIZATION AT A BUREAU HOSPITAL, AT THE RATE OF $100 PER MONTH FROM JUNE 7, 1924, TO DECEMBER 31, 1924, AND THEREAFTER, UNDER THE PROVISIONS OF SUBDIVISION (7) OF SECTION 202 OF THE WORLD WAR VETERANS' ACT, AT THE RATE OF $20 PER MONTH TO DATE OF DEATH, MAY 8, 1925. AN ADJUSTMENT WAS MADE IN THE ACCOUNT IN ACCORDANCE WITH THE ABOVE-MENTIONED AWARD.

NO PAYMENT HAS BEEN MADE BY THIS BUREAU FOR THE REASON THAT YOUR DECISION OF JULY 24, 1925, DISCUSSED THIS SPECIFIC CASE. THE LANGUAGE EMPLOYED IN THE DECISION OF JULY 24, 1925, WITH PARTICULAR REFERENCE TO THE CARPENTER CASE, DOES NOT SPECIFICALLY DECIDE THE QUESTION RAISED IN THIS CASE BY REASON OF THE FACT THAT THE DISABILITY SUFFERED BY THIS MAN WAS ONE OF THE CONDITIONS DESCRIBED IN THE FIRST PROVISO OF SECTION 200 OF THE WORLD WAR VETERANS' ACT, WHICH PROVISO STATES THAT:

"* * * NO PERSON SUFFERING FROM PARALYSIS, PARESIS, OR BLINDNESS, OR FROM CONSTITUTIONAL LUES REQUIRING HOSPITALIZATION, AS THE RESULT OF DISEASE, SHALL BE DENIED COMPENSATION WHILE A PATIENT IN A VETERANS' BUREAU HOSPITAL BY REASON OF WILLFUL MISCONDUCT. * * *"

THIS CLAIMANT, CARPENTER, WAS SUFFERING FROM A NEUROPSYCHIATRIC DISEASE, DEVELOPED TO A DEGREE OF TEN PERCENTUM OR MORE PRIOR TO JANUARY 1, 1925, WHICH CONDITION WAS HELD TO BE ONE PRESUMED TO RESULT FROM MILITARY SERVICE BECAUSE NO EVIDENCE OF INTERVENING CAUSE AFTER SEPARATION FROM THAT SERVICE WAS SHOWN. FROM JUNE 7, 1924, TO THE DATE OF HIS DEATH HE WAS RECEIVING HOSPITALIZATION IN A GOVERNMENT HOSPITAL FOR THE CONDITION SUFFERED, PARESIS, WHICH IS ONE OF THOSE INCLUDED IN THE ENUMERATION CONTAINED IN SAID FIRST PROVISO OF SECTION 200, PROVIDING THAT IN CASES DESCRIBED THEREIN COMPENSATION SHALL NOT BE DENIED BY REASON OF WILLFUL MISCONDUCT.

IT IS UNNECESSARY AT THIS TIME TO REVIEW THE LAW OR REPEAT THE CONSTRUCTION PLACED THEREON IN THE DECISIONS OF APRIL 3, 1925, AND JULY 24, 1925. THE ONLY NEW ESSENTIAL FACT REPORTED IS THAT CARPENTER WAS HOSPITALIZED BY THE VETERANS' BUREAU DURING THE PERIOD FOR WHICH COMPENSATION IS CLAIMED, AND THERE IS FOR PARTICULAR CONSIDERATION THAT PORTION OF SECTION 200 OF THE WORLD WAR VETERANS' ACT, DATED JUNE 7, 1924, 43 STAT. 616, ABOVE QUOTED FROM YOUR SUBMISSION, WHICH WAS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1304, AS FOLLOWS:

* * * PROVIDED, THAT NO PERSON SUFFERING FROM PARALYSIS, PARESIS, OR BLINDNESS SHALL BE DENIED COMPENSATION BY REASON OF WILLFUL MISCONDUCT, NOR SHALL ANY PERSON WHO IS HELPLESS OR BEDRIDDEN AS A RESULT OF ANY DISABILITY BE DENIED COMPENSATION BY REASON OF WILLFUL MISCONDUCT * * *.

THESE TWO PROVISIONS OF LAW WERE CONSTRUED IN THE DECISION OF APRIL 3,1925, TO WHICH REFERENCE MAY BE MADE. ON THE BASIS OF THAT CONSTRUCTION THE DECISION CONCLUDED WITH THE FOLLOWING TWO RULES FOR PAYMENT OF DISABILITY COMPENSATION IN CASES OF VENEREAL DISEASE OR RESULTING DISABILITIES:

(3) DURING HOSPITALIZATION FROM JUNE 7, 1924, TO MARCH 3, 1925, INCLUSIVE, IN A GOVERNMENT HOSPITAL (DECISION OF JANUARY 23, 1925, (A 6300) TO VETERANS OF THE WORLD WAR SUFFERING FROM PARALYSIS, PARESIS, OR BLINDNESS, OR CONSTITUTIONAL LUES, WHERE A CLAIM FOR DISABILITY COMPENSATION HAD IN ALL RESPECTS BEEN ESTABLISHED EXCEPT PROOF OF THE ABSENCE OF WILLFUL MISCONDUCT.

(4) ON AND SUBSEQUENT TO MARCH 4, 1925, TO VETERANS OF THE WORLD WAR SUFFERING FROM PARALYSIS, PARESIS, OR BLINDNESS, OR WHO ARE HELPLESS OR BEDRIDDEN AS A RESULT OF ANY DISABILITY, WHERE A CLAIM FOR DISABILITY COMPENSATION HAS IN ALL RESPECTS BEEN ESTABLISHED EXCEPT PROOF OF THE ABSENCE OF WILLFUL MISCONDUCT.

THE ONLY NEW QUESTION NOW PRESENTED, THEREFORE, IS WHETHER MIKE C. CARPENTER HAD ESTABLISHED THE CLAIM FOR DISABILITY COMPENSATION IN ALL RESPECTS EXCEPT PROOF OF THE ABSENCE OF WILLFUL MISCONDUCT.

REVIEWING THE FACTS, IT APPEARS THAT THERE WAS NO RECORD MADE OF ANY DISEASE OR DISABILITY WHEN HE ENTERED THE MILITARY SERVICE, DURING HIS SERVICE, OR UPON DISCHARGE. ON THIS BASIS IT WAS NECESSARY TO CONCLUDE, TO START WITH, BY OPERATION OF THE CONCLUSIVE PRESUMPTION CLAUSE OF THE STATUTE THAT THE DISEASE OR DISABILITY WAS INCURRED DURING, OR SUBSEQUENT TO, HIS MILITARY SERVICE. IN ORDER TO SHOW THE ORIGIN OF THE DISEASE BECAUSE OF ITS NATURE, THERE WAS INTRODUCED EVIDENCE THAT THE PRIMARY INFECTION WAS IN 1912. THIS EVIDENCE MUST BE GIVEN FULL CONSIDERATION FOR ALL PURPOSES, INCLUDING THAT OF SHOWING THE TIME OF INCURRENCE OF THE DISEASE OR DISABILITY. THUS, IT IS CLEARLY SHOWN THAT THE DISEASE WHICH RESULTED IN THE DISABILITY SUFFERED BY MIKE C. CARPENTER DURING HIS HOSPITALIZATION HAD NO CONNECTION WITH HIS MILITARY SERVICE. THERE IS NO EVIDENCE OF AGGRAVATION HAVING BEEN CAUSED BY HIS MILITARY SERVICE.

YOU ALSO REFER TO AND DISCUSS THE SECOND PROVISO OF SECTION 200 OF THE STATUTE CONTAINING THE PRESUMPTION AS TO SERVICE CONNECTION OF SPECIFIED DISEASE SHOWN TO HAVE EXISTED PRIOR TO JANUARY 1, 1925. EXCEPT AS TO TUBERCULOSIS, THIS PRESUMPTION HAS BEEN HELD TO BE PRIMA FACIE ONLY, AND REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE. 5 COMP. GEN. 52. IT IS REBUTTED IN THIS CASE BY THE EVIDENCE THAT THE DISEASE WAS INCURRED IN 1912.

I AM UNABLE TO CONCLUDE THAT THE ENACTMENT UNDER ITS PRESENT TERMS AUTHORIZES PAYMENT OF DISABILITY COMPENSATION EVEN DURING HOSPITALIZATION FOR A DISABILITY ARISING AFTER THE TERMINATION OF MILITARY SERVICE WHERE IT APPEARS THAT THE INCEPTION OF THE DISEASE RESULTING IN THE DISABILITY INCURRED PRIOR TO ENTRANCE INTO THE MILITARY SERVICE AND WAS NOT AGGRAVATED BY SUCH SERVICE. THE FACTS SUBMITTED DISCLOSE THAT THE CLAIM HAS NOT BEEN ESTABLISHED IN THE CASE OF MIKE C. CARPENTER IN ALL RESPECTS EXCEPT PROOF OF ABSENCE OF MISCONDUCT, AS REQUIRED BY THE QUOTED RULES ANNOUNCED IN THE DECISION OF APRIL 4, 1925, BECAUSE THERE IS LACKING THE PRIME ESSENTIAL THAT HIS CONDITION WAS IN ANY WAY THE RESULT OF HIS ACTIVE MILITARY SERVICE.