A-12553, FEBRUARY 23, 1926, 5 COMP. GEN. 655

A-12553: Feb 23, 1926

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VETERANS' BUREAU - MEDICAL TREATMENT PAYMENT IS AUTHORIZED OF OTHERWISE VALID CLAIMS FOR REIMBURSEMENT FOR COST OF MEDICAL TREATMENT PROCURED THROUGH PRIVATE SOURCES FOR VETERANS OF THE WORLD WAR. NO CLAIM WILL BE ALLOWED FOR PERIODS ON AND SUBSEQUENT TO JUNE 7. WHEREIN ONLY $84 WAS ALLOWED ON HIS CLAIM FOR $432.83 AS REIMBURSEMENT OF UNAUTHORIZED MEDICAL AND HOSPITAL EXPENSES FROM JANUARY 7 TO MAY 23. THE CLAIM FOR REIMBURSEMENT WAS PRESENTED TO THE VETERANS' BUREAU FOR THE AMOUNT OF $432.83 AS FOLLOWS: TABLE DR. 188.35 DISAPPROVING DOCTOR WEIDNER'S CLAIM BECAUSE IT WAS NOT SUFFICIENTLY ITEMIZED. SO MUCH OF DOCTOR KIRK'S BILL AS WAS IN EXCESS OF THE SCHEDULE OF FEES AUTHORIZED UNDER THE REGULATIONS.

A-12553, FEBRUARY 23, 1926, 5 COMP. GEN. 655

VETERANS' BUREAU - MEDICAL TREATMENT PAYMENT IS AUTHORIZED OF OTHERWISE VALID CLAIMS FOR REIMBURSEMENT FOR COST OF MEDICAL TREATMENT PROCURED THROUGH PRIVATE SOURCES FOR VETERANS OF THE WORLD WAR, BASED SOLELY ON IGNORANCE OF RIGHTS TO GOVERNMENTAL TREATMENT, FOR PERIODS PRIOR TO JUNE 7, 1924, BUT NOT SUBSEQUENT TO DATE OF FILING APPLICATION FOR DISABILITY COMPENSATION. NO CLAIM WILL BE ALLOWED FOR PERIODS ON AND SUBSEQUENT TO JUNE 7, 1924, BASED SOLELY ON IGNORANCE OF RIGHTS TO GOVERNMENTAL TREATMENT AND INVOLVING NO ELEMENT OF EMERGENCY WITHIN THE MEANING OF SECTION 202 (9) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 620.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 23, 1926:

ERNEST HUHLIEN APPLIED DECEMBER 22, 1925, FOR REVIEW OF SETTLEMENT DATED OCTOBER 5, 1925, WHEREIN ONLY $84 WAS ALLOWED ON HIS CLAIM FOR $432.83 AS REIMBURSEMENT OF UNAUTHORIZED MEDICAL AND HOSPITAL EXPENSES FROM JANUARY 7 TO MAY 23, 1922.

THE CLAIM FOR REIMBURSEMENT WAS PRESENTED TO THE VETERANS' BUREAU FOR THE AMOUNT OF $432.83 AS FOLLOWS:

TABLE DR. WEIDNER ------------------------------------------------ $48.00 DR. KIRK'S SANATORIUM -------------------------------------- 161.48 PRESBYTERIAN SANATORIUM ------------------------------------ 233.35

TOTAL -------------------------------------------------- $432.83

THE VETERANS' BUREAU APPROVED THE CLAIM FOR THE AMOUNT OF $326.35 AS FOLLOWS: DR. KIRK --------------------------------------------------- $138.00 PRESBYTERIAN SANATORIUM ------------------------------------ 188.35 DISAPPROVING DOCTOR WEIDNER'S CLAIM BECAUSE IT WAS NOT SUFFICIENTLY ITEMIZED, AND DISAPPROVING SO MUCH OF THE PRESBYTERIAN SANATORIUM'S CLAIM AS COVERED THE PERIOD AFTER MAY 24, 1922, AND SO MUCH OF DOCTOR KIRK'S BILL AS WAS IN EXCESS OF THE SCHEDULE OF FEES AUTHORIZED UNDER THE REGULATIONS.

THE EVIDENCE SHOWS THAT CLAIMANT MADE APPLICATION FOR DISABILITY COMPENSATION JANUARY 30, 1922, AND RATING AND ALLOWANCE WERE MADE BY THE BUREAU ON NOVEMBER 7, 1922, FOR A SERVICE-CONNECTED PULMONARY TUBERCULOSIS, THE COMPENSATION ALLOWED BEING MADE RETROACTIVE TO JANUARY 1, 1921. THE VETERANS' BUREAU FOUND THAT THERE WAS NO EVIDENCE THAT CLAIMANT WAS ADVISED OF HIS RIGHTS TO GOVERNMENTAL TREATMENT UNTIL MAY 24, 1922, AT WHICH TIME HE WAS EXAMINED BY THE VETERANS' BUREAU EXAMINER AT ALBUQUERQUE, N.MEX., AND IT APPEARS THAT ON JUNE 8, 1922, CLAIMANT WAS AUTHORIZED TO ENTER FITZSIMMONS GENERAL HOSPITAL FOR TREATMENT. IN HIS AFFIDAVIT DATED MARCH 6, 1924, CLAIMANT STATES THAT ABOUT MAY 1, 1922, HE FIRST CAME IN CONTACT WITH A VETERANS' BUREAU OFFICER AND AT THAT TIME WAS EXAMINED BUT WAS NOT OFFERED GOVERNMENT HOSPITALIZATION. HE ALSO STATES THAT HE WAS UNDER THE IMPRESSION THAT ONLY THOSE WHOSE CLAIMS HAD BEEN ALLOWED WERE ELIGIBLE TO ENTER GOVERNMENT HOSPITALS.

UNDER THE RECORD PRESENTED THIS CASE IS GOVERNED BY THE GENERAL PRINCIPLE ANNOUNCED IN 3 COMP. GEN. 286, ID. 365, ID. 379 AND ID. 779, WHICH IS TO THE EFFECT THAT AN AWARD OF DISABILITY COMPENSATION RETROACTIVELY EFFECTIVE CARRIES WITH IT THE RIGHT TO REIMBURSEMENT FOR PRIVATE EXPENSES OF NECESSARY MEDICAL AND HOSPITAL TREATMENT FOR SERVICE-CONNECTED DISABILITIES ON WHICH THE AWARD WAS BASED FROM THE EFFECTIVE DATE OF THE AWARD, WHEN IT IS SHOWN THAT THE BENEFICIARY WAS IGNORANT OF HIS RIGHTS TO GOVERNMENTAL TREATMENT OR IN CASES OF EMERGENCY NECESSITATING IMMEDIATE TREATMENT. THE VETERANS' BUREAU HAS FOUND AND CERTIFIED IN THIS CASE THAT THERE WAS NO EMERGENCY, BUT THAT CLAIMANT'S RIGHT TO REIMBURSEMENT RESTS SOLELY ON HIS IGNORANCE OF HIS RIGHT TO GOVERNMENTAL TREATMENT.

IN THE LAST CITED DECISION, 3 COMP. GEN. 779-780, IT WAS HELD:

THE FACTS SHOW THAT CLAIM FOR COMPENSATION WAS FILED APRIL 25, 1921, OVER A MONTH PRIOR TO CLAIMANT'S ARRIVAL AT THE PRIVATE SANITARIUM. THE FILING OF A CLAIM FOR DISABILITY COMPENSATION WOULD APPEAR TO BE INCONSISTENT WITH ALLEGATIONS OF IGNORANCE OF RIGHTS UNDER THE WAR RISK INSURANCE ACT, AND IT MUST BE CONSIDERED THAT A CLAIMANT IS COGNIZANT OF HIS RIGHTS TO MEDICAL TREATMENT WHEN FILING CLAIM FOR COMPENSATION. 3 COMP. GEN., 366. ACCORDINGLY AN AFFIDAVIT ALLEGING IGNORANCE AS OF A DATE SUBSEQUENT TO FILING OF A CLAIM FOR DISABILITY COMPENSATION WILL NOT BE ACCEPTED AS A BASIS FOR REIMBURSEMENT FOR COST OF PRIVATE MEDICAL TREATMENT. PREVIOUSLY HELD, THE RIGHT TO REIMBURSEMENT FOR PRIVATE MEDICAL TREATMENT PRIOR TO AUTHORIZATION THEREFOR BY THE VETERANS' BUREAU, AS INCIDENT TO A RETROACTIVE AWARD OF DISABILITY COMPENSATION, IS NOT BASED ON ANY EXPRESS STATUTORY AUTHORITY, BUT HAS BEEN AUTHORIZED BY DECISIONS OF THIS OFFICE GIVING A CONSTRUCTION SHOWING THE INTENT OF THE RETROACTIVE PROVISIONS OF THE WAR RISK INSURANCE ACT IN ORDER TO EQUALIZE WHAT WOULD OTHERWISE BE AN INEQUALITY BETWEEN THOSE PERSONS HAVING KNOWLEDGE OF THEIR RIGHTS UNDER THE WAR RISK INSURANCE ACT AND THOSE PERSONS WHO DO NOT HAVE THAT KNOWLEDGE, OR TO COVER CASES OF EMERGENCY WHERE DELAY IN OBTAINING GOVERNMENTAL TREATMENT MIGHT PROVE FATAL. BECAUSE OF THIS ABSENCE OF EXPRESS STATUTORY AUTHORITY, AND BECAUSE OF THE REQUIREMENTS OF LAW THAT GOVERNMENTAL FACILITIES ARE PRIMARILY TO BE USED, THE EVIDENCE OF IGNORANCE ON THE PART OF THE CLAIMANT AT THE TIME THE PRIVATE TREATMENT WAS PROCURED MUST BE SO CLEAR AND CONVINCING AS TO LEAVE NO ROOM FOR REASONABLE DOUBT. * * *

IT IS BELIEVED THAT THE DEFINITE RULE THUS ANNOUNCED IN THE QUOTED DECISION TO THE EFFECT THAT IGNORANCE OF RIGHTS TO GOVERNMENTAL TREATMENT WILL NOT BE RECOGNIZED WITH RESPECT TO ANY PERIOD SUBSEQUENT TO THE DATE OF FILING CLAIM FOR DISABILITY COMPENSATION, CAN NOT NOW BE LIBERALIZED, PARTICULARLY IN VIEW OF THE PROVISIONS OF SECTION 202 (9) OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 620. THIS STATUTE GAVE RECOGNITION AND APPROVAL TO THE PRIOR DECISIONS IN SO FAR AS THERE WAS AUTHORIZED REIMBURSEMENT FOR EMERGENCY TREATMENT PROCURED THROUGH PRIVATE SOURCES, BUT DID NOT GIVE RECOGNITION AND APPROVAL TO THOSE CLAIMS FOR REIMBURSEMENT BASED SOLELY ON IGNORANCE OF RIGHT TO GOVERNMENTAL TREATMENT INVOLVING NO ELEMENT OF EMERGENCY, SUCH AS THE PRESENT CASE. THEREFORE THERE WOULD APPEAR TO BE SOME QUESTION WHETHER ANY CLAIM FOR REIMBURSEMENT OF COST OF PRIVATE MEDICAL TREATMENT BASED SOLELY ON IGNORANCE OF RIGHTS TO GOVERNMENTAL TREATMENT MAY NOW BE PAID. HOWEVER, IN VIEW OF THE PRACTICE WHICH MAINTAINED PRIOR TO JUNE 7, 1924, I AM CONSTRAINED TO RESOLVE THE DOUBT IN FAVOR OF ALLOWANCE OF OTHERWISE VALID CLAIMS FOR REIMBURSEMENT OF EXPENSES OF TREATMENT COVERING PERIODS PRIOR TO JUNE 7, 1924, BASED SOLELY ON IGNORANCE OF RIGHTS TO GOVERNMENTAL TREATMENT, WHEN SUPPORTED BY CLEAR AND CONVINCING EVIDENCE, BUT IN NO CASE FOR ANY PERIOD SUBSEQUENT TO DATE OF FILING APPLICATION FOR DISABILITY COMPENSATION. BUT IN VIEW OF THE PROVISIONS OF SECTION 202 (9) OF THE ACT OF JUNE 7, 1924, 43 STAT. 620, NO ALLOWANCE CAN BE MADE ON ANY CLAIM FOR PERIODS SUBSEQUENT TO JUNE 7, 1924, BASED SOLELY ON IGNORANCE OF RIGHT TO GOVERNMENTAL TREATMENT AND INVOLVING NO ELEMENT OF EMERGENCY WITHIN THE MEANING OF SAID PROVISION.

IN THIS CASE CLAIMANT FILED HIS APPLICATION FOR DISABILITY COMPENSATION JANUARY 30, 1922. PRIOR THERETO HE WAS FURNISHED BY DOCTOR KIRK, ON JANUARY 7, X-RAY EXAMINATION AT $15 AND MEDICAL TREATMENT FROM JANUARY 7 TO 29, INCLUSIVE, FOR WHICH THE REGULATIONS OF THE VETERANS' BUREAU AUTHORIZE REIMBURSEMENT AT THE RATE OF $3 PER DAY, OR A TOTAL OF $84. THE REMAINDER OF THE CLAIM, ADMINISTRATIVELY APPROVED BY THE VETERANS' BUREAU, REPRESENTS REIMBURSEMENT FOR MEDICAL TREATMENT PROCURED ON AND SUBSEQUENT TO DATE OF APPLICATION FOR DISABILITY COMPENSATION, AND MUST BE DISALLOWED FOR REASONS HEREINBEFORE STATED.