A-14047, MAY 5, 1926, 5 COMP. GEN. 895

A-14047: May 5, 1926

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UNDER A REGULATION PROMULGATED BY THE VETERANS' BUREAU SUBSEQUENT TO THE DEATH OF THE INSURED AND WHICH WAS NOT RETROACTIVELY EFFECTIVE. CAVERLY ARE STATED BY YOU AS FOLLOWS: THE DECEASED SOLDIER. THE DECEASED SOLDIER WAS DISCHARGED ON AUGUST 7. WAS NOT PAID THE INSURANCE LAPSED APRIL 1. A REMITTANCE OF $14 WAS MADE TO COVER PREMIUMS FOR THE MONTHS OF MARCH AND APRIL. NO HEALTH STATEMENT AS REQUIRED WAS SUBMITTED WITH THIS REMITTANCE. CAVERLY WAS ACCIDENTALLY KILLED WHILE AT WORK IN THE COURSE OF HIS EMPLOYMENT AT THE GOODRICH RUBBER PLANT IN AKRON. AFFIDAVITS HAVE BEEN SUBMITTED FROM PERSONS HAVING KNOWLEDGE OF THE FACTS WHOSE CREDIBILITY IS NOT IN DISPUTE TO THE EFFECT THAT THE DECEASED TO THE BEST OF THEIR KNOWLEDGE AND BELIEF WAS IN GOOD HEALTH AT THE DATE OF HIS ACCIDENTAL AND UNEXPECTED DEATH.

A-14047, MAY 5, 1926, 5 COMP. GEN. 895

VETERANS' BUREAU - INSURANCE - REINSTATEMENT THE PROVISIONS OF A REGULATION OF THE BUREAU OF WAR RISK INSURANCE REQUIRING AS A CONDITION PRECEDENT TO THE REINSTATEMENT OF A LAPSED POLICY OF WAR-RISK INSURANCE THAT THE INSURED FURNISH A STATEMENT OF GOOD HEALTH IN HIS APPLICATION FOR REINSTATEMENT MAY NOT BE WAIVED AND OTHER EVIDENCE ADMITTED SUBSEQUENT TO THE DEATH OF THE INSURED AS TO HIS GOOD HEALTH, UNDER A REGULATION PROMULGATED BY THE VETERANS' BUREAU SUBSEQUENT TO THE DEATH OF THE INSURED AND WHICH WAS NOT RETROACTIVELY EFFECTIVE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MAY 5, 1926:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF APRIL 19, 1926, REQUESTING DECISION, WHETHER, IN THE CASE OF JAMES L. CAVERLY, THE PROVISIONS OF REGULATIONS OF THE BUREAU OF WAR RISK INSURANCE NO. 47, DATED JULY 25, 1919, IN FORCE AT THE DATE OF DEATH OF THE INSURED, REQUIRING A STATEMENT OF GOOD HEALTH BY THE INSURED IN HIS APPLICATION FOR REINSTATEMENT OF A LAPSED POLICY OF WAR-RISK INSURANCE, MAY BE WAIVED UNDER THE TERMS OF A LATER REGULATION OF THE UNITED STATES VETERANS' BUREAU, NO. 14, DATED DECEMBER 9, 1921, AND EFFECTIVE JANUARY 2, 1922.

THE FACTS IN THE CASE OF JAMES L. CAVERLY ARE STATED BY YOU AS FOLLOWS:

THE DECEASED SOLDIER, JAMES L. CAVERLY, ENTERED SERVICE ON OCTOBER 14, 1917, AND APPLIED ON FEBRUARY 1, 1918, FOR $10,000 WAR-RISK INSURANCE FOR WHICH HE DESIGNATED HIS MOTHER AND HIS BROTHER AS BENEFICIARIES FOR $5,000 EACH. THE DECEASED SOLDIER WAS DISCHARGED ON AUGUST 7, 1919, AND AS THE PREMIUM DUE MARCH 1, 1920, WAS NOT PAID THE INSURANCE LAPSED APRIL 1, 1920.

ON APRIL 6, 1920, A REMITTANCE OF $14 WAS MADE TO COVER PREMIUMS FOR THE MONTHS OF MARCH AND APRIL, 1920, BUT NO HEALTH STATEMENT AS REQUIRED WAS SUBMITTED WITH THIS REMITTANCE. MR. CAVERLY WAS ACCIDENTALLY KILLED WHILE AT WORK IN THE COURSE OF HIS EMPLOYMENT AT THE GOODRICH RUBBER PLANT IN AKRON, OHIO, ON APRIL 8, 1920. AFFIDAVITS HAVE BEEN SUBMITTED FROM PERSONS HAVING KNOWLEDGE OF THE FACTS WHOSE CREDIBILITY IS NOT IN DISPUTE TO THE EFFECT THAT THE DECEASED TO THE BEST OF THEIR KNOWLEDGE AND BELIEF WAS IN GOOD HEALTH AT THE DATE OF HIS ACCIDENTAL AND UNEXPECTED DEATH. MAY BE SAID IN PASSING THAT THERE IS NO DISPUTE AS TO THE FACT THAT THE INSURED WAS IN GOOD HEALTH AT THE TIME.

YOU STATE THAT REGULATION NO. 47, OF THE BUREAU OF WAR RISK INSURANCE, DATED JULY 25, 1919, PROVIDED AS FOLLOWS:

3. INSURANCE LAPSED OR CANCELLED MAY BE REINSTATED WITHIN EIGHTEEN MONTHS AFTER THE MONTH OF DISCHARGE, PROVIDED THE INSURED IS IN AS GOOD HEALTH AS AT DATE OF DISCHARGE OR AT THE EXPIRATION OF THE GRACE PERIOD, WHICHEVER IS THE LATER DATE, AND SO STATES IN HIS APPLICATION; AND MAY BE REINSTATED AFTER EIGHTEEN MONTHS SUCCEEDING THE MONTH OF DISCHARGE, PROVIDED SUCH INSURANCE HAS NOT BEEN LAPSED FOR MORE THAN ONE YEAR, UNDER THE FOLLOWING CONDITIONS:

(A) WITHIN THREE CALENDAR MONTHS SUCCEEDING THE GRACE PERIOD IF THE INSURED IS IN AS GOOD HEALTH AS AT THE EXPIRATION OF THE GRACE PERIOD AND SO STATES IN HIS APPLICATION.

(B) WITHIN ELEVEN CALENDAR MONTHS SUCCEEDING THE GRACE PERIOD IF THE INSURED IS IN AS GOOD HEALTH AS AT THE EXPIRATION OF THE GRACE PERIOD AND SO STATES IN HIS APPLICATION AND INCLUDES THEREWITH A FORMAL REPORT OF EXAMINATION MADE BY A REPUTABLE PHYSICIAN SUBSTANTIATING SAID STATEMENT TO THE SATISFACTION OF THE DIRECTOR OF THE BUREAU OF WAR RISK INSURANCE.

IN EACH OF THE PARAGRAPHS OF THE REGULATION AS QUOTED IT IS STIPULATED, AS A CONDITION PRECEDENT TO REINSTATEMENT OF THE POLICY, THAT THE APPLICANT MAKE THE NECESSARY STATEMENT OF GOOD HEALTH IN HIS APPLICATION FOR REINSTATEMENT. THIS REQUIREMENT WAS AS ESSENTIAL UNDER THE REGULATION AS THE PAYMENT OF THE NECESSARY PREMIUMS. IF THE SHOWING OF GOOD HEALTH WAS NOT MADE BY THE INSURED DURING HIS LIFETIME, THE CONDITIONS TO EFFECT REINSTATEMENT WERE NOT FULFILLED, AND THERE COULD HAVE BEEN NO REINSTATEMENT UNDER THE ONLY APPLICABLE REGULATION IN FORCE AT THE TIME. A SHOWING AS TO THE GOOD HEALTH OF THE INSURED BY OTHERS SUBSEQUENT TO HIS DEATH WOULD NOT HAVE SUFFICED. 4 COMP. GEN. 723.

YOU STATE THAT REGULATION NO. 14 OF THE UNITED STATES VETERANS' BUREAU DATED DECEMBER 9, 1921, AND EFFECTIVE JANUARY 2, 1922, PROVIDED AS FOLLOWS:

THAT IF THE INSURANCE BECAME A CLAIM AFTER TENDER OF THE AMOUNT OF THE PREMIUMS REQUIRED BUT BEFORE FULL COMPLIANCE WITH THE REQUIREMENTS OF THIS SECTION, AND THE APPLICANT WAS IN THE REQUIRED STATE OF HEALTH AT THE DATE THAT HE MADE THE TENDER OF THE AMOUNT OF PREMIUMS, AND THAT THERE IS A SATISFACTORY REASON FOR HIS NONCOMPLIANCE, THE DIRECTOR MAY, IF THE APPLICANT BE DEAD, WAIVE ANY OR ALL OF THE REQUIREMENTS OF THIS SECTION, OR, IF HE BE LIVING, ALLOW COMPLIANCE WITH THE SAME AS OF THE DATE THE REQUIRED AMOUNT OF PREMIUMS WAS RECEIVED BY THE BUREAU.

THIS REGULATION WAS CONSIDERED IN DECISION DATED JUNE 9, 1925, A 9707, AND APPLIED TO THE CASE OF ROBERT B. AUSTIN, WHO DIED SEPTEMBER 1, 1924, SUBSEQUENT TO THE EFFECTIVE DATE OF THE REGULATION. THE DECISION HELD THAT EVIDENCE AS TO THE GOOD HEALTH OF THE INSURED SUBMITTED SUBSEQUENT TO HIS DEATH COULD BE GIVEN CONSIDERATION.

BUT SUCH REGULATION WAS NOT RETROACTIVELY EFFECTIVE AND COULD NOT BE SO CONSIDERED. IN THIS CONNECTION REFERENCE IS MADE TO DECISION DATED APRIL 27, 1926, A-13532, 5 COMP. GEN. 864, WHEREIN IT WAS STATED AS FOLLOWS:

* * * IT HAS BEEN HELD THAT REGULATIONS PROMULGATED BY THE BUREAU OF WAR RISK INSURANCE AND THE U.S. VETERANS' BUREAU PURSUANT TO THE CONTROLLING STATUTE HAVE THE FORCE AND EFFECT OF LAW. SAWYER V. UNITED STATES, 10 FED.REP. (2D), 416. IT HAS BEEN HELD ALSO THAT SUCH REGULATIONS MAY BE MODIFIED, REPEALED, OR CREATED ANEW BY THE SAME AUTHORITY THAT MADE THEM, BUT THAT UNTIL THIS IS DONE THEY ARE BINDING ON THE AUTHORITY THAT MADE THEM AS WELL AS ON OTHERS, THAT THEY CAN HAVE NO RETROACTIVE EFFECT, AND THAT ANY MODIFICATION OR AMENDMENT THEREOF MUST BE OF A GENERAL AND PROSPECTIVE APPLICATION. SEE 26 COMP. DEC. 99 AND COURT DECISIONS THEREIN CITED; AND 4 COMP. GEN. 480 AND COURT DECISIONS THEREIN CITED.

YOU ARE ADVISED, THEREFORE, THAT THE POLICY ISSUED TO JAMES L. CAVERLY WHICH LAPSED FOR NONPAYMENT OF PREMIUMS MAY NOT BE CONSIDERED AS HAVING BEEN REINSTATED.