A-17939, APRIL 22, 1927, 6 COMP. GEN. 689

A-17939: Apr 22, 1927

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IS SUBMITTED TO YOU FOR AN OPINION AT THE REQUEST OF REPRESENTATIVE FLORIAN LAMPERT. EMERTON WAS FORMERLY RATED AS PERMANENTLY AND TOTALLY DISABLED FROM AUGUST 31. THE CLAIMS RATING BOARD DECLARED THE INSURED TO HAVE BEEN PERMANENTLY AND TOTALLY DISABLED ON AND AFTER JANUARY 7. THIS LATTER RATING IS BASED UPON A REPORT FROM THE NAVY DEPARTMENT. IT WAS SUBSEQUENT TO APRIL 26. THE INSURED IS PROTECTED BY U.S. IT APPEARS THAT THE FIRST EVIDENCE SHOWING PERMANENT AND TOTAL DISABILITY IN THIS CASE WAS AN EXAMINATION OF AUGUST 31. WAS PREDICATED. WAS SUBSEQUENT TO APRIL 26. THE QUESTION IS WHETHER THE APPLICATION OF THE SIX MONTHS' PROVISION IN CLAUSE 9 OF THE POLICY WILL PERMIT PAYMENT FROM A DATE SIX MONTHS PRIOR TO AUGUST 31.

A-17939, APRIL 22, 1927, 6 COMP. GEN. 689

VETERANS' BUREAU - INSURANCE - EFFECTIVE DATE OF MATURITY FOR TOTAL PERMANENT DISABILITY UNDER A CLAUSE IN A POLICY OF UNITED STATES GOVERNMENT INSURANCE THAT "TOTAL PERMANENT DISABILITY BENEFITS MAY RELATE BACK TO A DATE NOT EXCEEDING SIX MONTHS PRIOR TO THE RECEIPT OF DUE PROOF OF SUCH TOTAL PERMANENT DISABILITY.' THE PHRASE "RECEIPT OF DUE PROOF" MEANS RECEIPT BY OR ON BEHALF OF THE VETERANS' BUREAU, AND NOT RECEIPT BY ANOTHER BRANCH OF THE GOVERNMENT NOT IN CONNECTION WITH THE WORK OF THE VETERANS' BUREAU, SUCH AS RECEIPT OF PROOF BY THE NAVY OF TOTAL PERMANENT DISABILITY FOR THE PURPOSE OF DISCHARGING THE INSURED FROM THE NAVAL SERVICE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, APRIL 22, 1927:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MARCH 28, 1927, AS FOLLOWS:

THE CASE OF THOMAS T. EMERTON, C-637130, IS SUBMITTED TO YOU FOR AN OPINION AT THE REQUEST OF REPRESENTATIVE FLORIAN LAMPERT.

THOMAS T. EMERTON WAS FORMERLY RATED AS PERMANENTLY AND TOTALLY DISABLED FROM AUGUST 31, 1925, BASED ON AN EXAMINATION OF THAT DATE. UNDER DATE OF MAY 7, 1926, THE CLAIMS RATING BOARD DECLARED THE INSURED TO HAVE BEEN PERMANENTLY AND TOTALLY DISABLED ON AND AFTER JANUARY 7, 1925. THIS LATTER RATING IS BASED UPON A REPORT FROM THE NAVY DEPARTMENT, THE DATE OF RECEIPT OF WHICH IN THE BUREAU DOES NOT APPEAR, BUT IT WAS SUBSEQUENT TO APRIL 26, 1926. THE INSURED IS PROTECTED BY U.S. GOVERNMENT (CONVERTED) INSURANCE, AND CLAUSE 9 OF THE POLICY IN QUESTION CONTAINS THIS LIMITATION:

"THE TOTAL PERMANENT DISABILITY BENEFITS MAY RELATE BACK TO A DATE NOT EXCEEDING SIX MONTHS PRIOR TO THE RECEIPT OF DUE PROOF OF SUCH TOTAL PERMANENT DISABILITY AND ANY PREMIUMS BECOMING DUE AFTER THE DATE OF SUCH DISABILITY AND WITHIN SUCH SIX MONTHS, IF PAID, SHALL BE REFUNDED WITHOUT INTEREST.'

IT APPEARS THAT THE FIRST EVIDENCE SHOWING PERMANENT AND TOTAL DISABILITY IN THIS CASE WAS AN EXAMINATION OF AUGUST 31, 1925, AS STATED, BUT THE DATE OF THE RECEIPT OF THE FIRST EVIDENCE UPON WHICH THE PERMANENT AND TOTAL DISABILITY RATING OF MAY 7, 1926, WAS PREDICATED, WAS SUBSEQUENT TO APRIL 26, 1926. THE QUESTION IS WHETHER THE APPLICATION OF THE SIX MONTHS' PROVISION IN CLAUSE 9 OF THE POLICY WILL PERMIT PAYMENT FROM A DATE SIX MONTHS PRIOR TO AUGUST 31, 1925, OR WHETHER PAYMENTS UPON THE RATING OF MAY 7, 1926, SHOULD BE MADE ON THE BASIS OF SIX MONTHS PRIOR TO THE DATE OF RECEIPT OF EVIDENCE UPON WHICH THAT RATING WAS MADE, WHICH WOULD NOT PERMIT AN AMENDMENT OF THE EXISTING AWARD NOW DATING FROM AUGUST 31, 1925. IN OTHER WORDS, THE ESSENTIAL QUESTION IS WHETHER THE REPORT BASED UPON THE EXAMINATION MADE BY THE NAVY DEPARTMENT MAY BE REGARDED AS RECEIPT OF DUE PROOF BY THE VETERANS' BUREAU. IT IS THE CONTENTION OF THE BUREAU THAT WHILE IN A NUMBER OF DECIDED CASES THE BUREAU HAS RECOGNIZED EXAMINATIONS BY THE PUBLIC HEALTH SERVICE AS EQUIVALENT TO THE RECEIPT OF DUE PROOF BY THE BUREAU THAT THE SAME RULE WOULD NOT APPLY, FOR THE PURPOSES OF CLAUSE 9, TO AN EXAMINATION BY THE NAVY DEPARTMENT. WHILE, OF COURSE, THE NAVY DEPARTMENT IS A CONSTITUENT PART OF THE UNITED STATES GOVERNMENT, AS IS THE UNITED STATES VETERANS' BUREAU, NEVERTHELESS THE RELATIONSHIP OF THE NAVY DEPARTMENT TO THE VETERANS' BUREAU, IS NOT QUITE THE SAME AS THAT OF THE PUBLIC HEALTH SERVICE. THE PUBLIC HEALTH SERVICE WAS REGARDED AS ACTING UNDER AN IMPLIED AGENCY FOR THE VETERANS' BUREAU IN EXAMINING CIVILIANS FOR THE PURPOSE OF DETERMINING THE RIGHTS OF THOSE CIVILIANS TO THE BENEFITS OF THE ORGANIC ACT. IN THE PRESENT CASE THE NAVY DEPARTMENT WAS ACTING UPON A SERVICE MAN THEN UNDER THE CONTROL OF THE NAVY, AND SUBJECT TO NAVY DISCIPLINE. THE EXAMINATION WAS NOT MADE IN ANY SENSE IN BEHALF OF OR FOR THE VETERANS' BUREAU, BUT SOLELY TO DETERMINE THE SERVICE MAN'S FITNESS TO REMAIN IN THE NAVAL SERVICE. THE NAVY DEPARTMENT WAS ACTING ON ITS OWN INITIATIVE IN GIVING THE EXAMINATION WITH NO THOUGH DIRECT OR INDIRECT WITH RELATION TO THE WORK OF THIS BUREAU. FOR THESE REASONS THE BUREAU HAS HELD THAT THE EXAMINATION BY THE MEDICAL AUTHORITIES OF THE NAVY CAN NOT BE ACCEPTED BY THIS BUREAU AS RECEIPT OF DUE PROOF BY THE BUREAU IN ORDER TO DETERMINE THE BEGINNING DATE OF THE PERMANENT AND TOTAL DISABILITY BENEFITS, AND THE BUREAU HAS AGREED, THEREFORE, THAT THESE PAYMENTS ARE TO BE MADE ON THE BASIS OF SIX MONTHS PRIOR TO THE RECEIPT OF EVIDENCE BY THIS BUREAU, SO THAT NO AMENDMENT OF THE EXISTING AWARD DATING FROM AUGUST 31, 1925, COULD BE PERMITTED.

UNDER SECTION 300 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 624, A POLICY OF INSURANCE MATURES ON THE DATE OF DEATH OR HAPPENING OF TOTAL PERMANENT DISABILITY. IT IS MATURITY ON ACCOUNT OF THE LATTER EVENT WHICH IS FOR CONSIDERATION HEREIN. IT IS NOT UNDERSTOOD, THEREFORE, THAT CLAUSE 9 OF THE POLICY QUOTED IN YOUR SUBMISSION IS PROPERLY CONSTRUED AS AUTHORIZING PAYMENTS OF INSURANCE INSTALLMENTS FOR PERIODS PRIOR TO EFFECTIVE DATE OF TOTAL PERMANENT DISABILITY. BUT THAT, IF A TOTAL PERMANENT DISABILITY ACTUALLY EXISTED, THE POLICY MAY BE CONSIDERED AS HAVING MATURED FROM A DATE NOT EXCEEDING SIX MONTHS PRIOR TO RECEIPT IN THE VETERANS' BUREAU OF DUE PROOF OF SUCH TOTAL PERMANENT DISABILITY. THE EVIDENCE ON WHICH THE FIRST DISABILITY RATING IN THE CASE OF THOMAS T. EMERTON WAS MADE, AND WHICH, IT IS ASSUMED, WAS RECEIVED BY THE VETERANS' BUREAU AUGUST 31, 1925, HAD SHOWN THAT THE TOTAL PERMANENT DISABILITY ACTUALLY EXISTED FROM AND AFTER JANUARY 7, 1925, THE POLICY MIGHT HAVE BEEN CONSIDERED AS HAVING MATURED AS OF FEBRUARY 28, 1925, WHICH WAS SIX MONTHS PRIOR TO AUGUST 31, 1925, DATE OF EXAMINATION AND "RECEIPT OF DUE PROOF OF SUCH TOTAL PERMANENT DISABILITY.'

THE PHRASE "RECEIPT OF DUE PROOF" UNQUESTIONABLY MEANS RECEIPT BY OR ON BEHALF OF THE VETERANS' BUREAU, NOT BY ANY OTHER BRANCH OF THE SERVICE NOT IN CONNECTION WITH THE WORK OF THE VETERANS' BUREAU. A MEDICAL FINDING OF TOTAL PERMANENT DISABILITY BY THE NAVY FOR THE PURPOSE OF DISCHARGING THE INSURED FROM THE NAVAL SERVICE WOULD NOT CONSTITUTE RECEIPT OF DUE PROOF IN THE VETERANS' BUREAU FOR THE PURPOSE OF MATURING A POLICY OF INSURANCE. THE LAW HAS VESTED IN THE VETERANS' BUREAU THE EXCLUSIVE JURISDICTION AND RESPONSIBILITY FOR DETERMINING THE TIME OF HAPPENING AND DEGREE OF DISABILITY. OF COURSE, THERE WOULD APPEAR TO BE NO LEGAL OBJECTION TO THE ADOPTION BY THE VETERANS' BUREAU OF A MEDICAL FINDING OF TOTAL PERMANENT DISABILITY MADE BY ANOTHER BRANCH OF THE SERVICE, UPON REVIEW OF THE FACTS AND APPROVAL OF THE FINDING BY THE VETERANS' BUREAU, BUT THE DATE OF RECEIPT OF DUE PROOF OF TOTAL PERMANENT DISABILITY IN SUCH A CASE WOULD NOT BE THE DATE OF RECEIPT IN THE OTHER BRANCH OF THE SERVICE BUT THE DATE OF RECEIPT IN THE VETERANS' BUREAU. THUS UNDER THE SECOND RATING IN THE CASE OF THOMAS T. EMERTON, THE POLICY MIGHT HAVE BEEN CONSIDERED AS HAVING MATURED ONLY FROM SIX MONTHS PRIOR TO RECEIPT IN THE VETERANS' BUREAU OF THE MEDICAL FINDING OF THE NAVY DEPARTMENT, WHICH DATE DOES NOT APPEAR TO BE KNOWN. IN ANY EVENT THE DATE WOULD APPEAR TO BE MORE THAN SIX MONTHS SUBSEQUENT TO AUGUST 31, 1925.

YOU DO NOT STATE DEFINITELY WHEN TOTAL PERMANENT DISABILITY WAS SHOWN TO HAVE EXISTED AS DISCLOSED BY THE EXAMINATION MADE BY THE VETERANS' BUREAU AUGUST 31, 1925. ASSUMING THAT SUCH DISABILITY WAS SHOWN TO HAVE EXISTED FROM AUGUST 31, 1925, DATE OF THE EXAMINATION, ON THE BASIS OF WHICH IT IS UNDERSTOOD INSURANCE INSTALLMENTS WERE PAID FROM THAT DATE, THERE WOULD BE NO AUTHORITY OF LAW FOR AMENDING THE AWARD AUTHORIZING PAYMENT OF INSURANCE INSTALLMENTS FOR PERIODS PRIOR TO AUGUST 31, 1925, ON THE BASIS OF THE FINDING OF TOTAL PERMANENT DISABILITY BY THE NAVY DEPARTMENT.