A-21297, MARCH 9, 1928, 7 COMP. GEN. 551

A-21297: Mar 9, 1928

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

AT THE END OF WHICH THE POLICY OF INSURANCE WOULD HAVE BECOME INCONTESTABLE. IF PERMANENT TOTAL DISABILITY IS DETERMINED BY THE VETERANS' BUREAU TO HAVE OCCURRED LESS THAN SIX MONTHS AFTER AN ATTEMPTED REINSTATEMENT. IT IS LEGAL AND PROPER FOR THE GOVERNMENT TO FURTHER QUESTION THE HEALTH CONDITION OF THE INSURED AT THE TIME OF THE ATTEMPTED REINSTATEMENT. IF UPON REVIEW THE VETERANS' BUREAU FINALLY DETERMINES THE INSURED TO HAVE BEEN PERMANENTLY AND TOTALLY DISABLED AT THE TIME OF ATTEMPTED REINSTATEMENT. THERE HAS BEEN NO LAWFUL REINSTATEMENT AND PAYMENT OF THE INSURANCE IS NOT AUTHORIZED. THE FACTS ON THE BASIS OF WHICH DECISION IS REQUESTED ARE STATED IN YOUR LETTER OF FEBRUARY 13.

A-21297, MARCH 9, 1928, 7 COMP. GEN. 551

VETERANS' BUREAU - INSURANCE - INCONTESTABILITY THE HAPPENING OF PERMANENT TOTAL DISABILITY UNDER A RATING BY THE VETERANS' BUREAU EFFECTIVE FROM DATE OF EXAMINATION STOPS THE RUNNING OF THE PERIOD OF SIX MONTHS FIXED BY SECTION 307 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 627, AT THE END OF WHICH THE POLICY OF INSURANCE WOULD HAVE BECOME INCONTESTABLE; HENCE, IF PERMANENT TOTAL DISABILITY IS DETERMINED BY THE VETERANS' BUREAU TO HAVE OCCURRED LESS THAN SIX MONTHS AFTER AN ATTEMPTED REINSTATEMENT, IT IS LEGAL AND PROPER FOR THE GOVERNMENT TO FURTHER QUESTION THE HEALTH CONDITION OF THE INSURED AT THE TIME OF THE ATTEMPTED REINSTATEMENT, AND IF UPON REVIEW THE VETERANS' BUREAU FINALLY DETERMINES THE INSURED TO HAVE BEEN PERMANENTLY AND TOTALLY DISABLED AT THE TIME OF ATTEMPTED REINSTATEMENT, THERE HAS BEEN NO LAWFUL REINSTATEMENT AND PAYMENT OF THE INSURANCE IS NOT AUTHORIZED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, MARCH 9, 1928:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTERS OF JANUARY 14 AND FEBRUARY 13, 1928, SUBMITTING FOR CONSIDERATION THE WAR-RISK INSURANCE CASE OF PHILIPS (OR PHILIP) MCNISH, C-710061.

THE FACTS ON THE BASIS OF WHICH DECISION IS REQUESTED ARE STATED IN YOUR LETTER OF FEBRUARY 13, 1928, AS FOLLOWS:

THE VETERAN WHILE IN THE SERVICE APPLIED FOR AND WAS GRANTED $10,000 YEARLY RENEWABLE TERM INSURANCE, EFFECTIVE NOVEMBER 8, 1917, UNDER CERTIFICATE NO. T-22526. THE VETERAN WAS DISCHARGED FROM THE SERVICE ON APRIL 12, 1919, AND THE TERM INSURANCE IS REPORTED TO HAVE LAPSED FOR FAILURE TO PAY THE PREMIUM DUE MAY 1, 1919.

ON MAY 20, 1921, THE VETERAN FILED CLAIM FOR COMPENSATION, ALLEGING TUBERCULOSIS AS HIS DISABILITY. ON AUGUST 1, 1921, THE BUREAU RECEIVED AFFIDAVITS FROM CERTAIN PHYSICIANS AS TO EXAMINATIONS MADE OF THE CLAIMANT IN APRIL, 1921, APPARENTLY DISCLOSING SOME EVIDENCE OF TUBERCULOSIS. SEPTEMBER 15, 1921, THE VETERAN WAS ORDERED TO APPEAR FOR EXAMINATION BY A TUBERCULOSIS EXPERT, WHICH EXAMINATION, UNDER DATE OF OCTOBER 11, 1921, DID NOT REVEAL TUBERCULOSIS, BUT CHRONIC FIBRINOUS PLEURISY. ON NOVEMBER 9, 1921, THE CLAIM FOR COMPENSATION WAS DENIED.

APPARENTLY THERE WAS NO FURTHER ACTION IN THE CASE UNTIL APRIL 23, 1924, WHEN THE PRESIDENT OF THE UNITED STATES RECEIVED A TELEGRAM FROM W. S. H. ARMISTEAD PROTESTING AGAINST THE DENIAL OF THE CLAIM BY THE VETERANS' BUREAU AND STATING THAT THE VETERAN WAS "FLAT ON HIS BACK WITH TUBERCULOSIS, DYING.' ON MAY 23, 1924, ANOTHER EXAMINATION WAS ORDERED, WHICH EXAMINATION WAS MADE ON JUNE 2, 1924, AND WHICH DISCLOSED THAT THERE WAS TUBERCULAR INVOLVEMENT OF THE RIGHT LUNG AND POSSIBLY OF THE LEFT LUNG. ON THE BASIS OF THE EXAMINATION OF JUNE 2, 1924, SERVICE CONNECTION WAS GRANTED FOR THE DISABILITY, WITH A RATING OF TEMPORARY PARTIAL 25 PERCENT FROM APRIL 10, 1921, AND TEMPORARY PARTIAL 75 PERCENT FROM JUNE 2, 1924. ON MAY 1, 1925, THE VETERAN WAS EXAMINED BY THE BUREAU FOR INSURANCE PURPOSES, THE EXAMINING PHYSICIAN FINDING ACTIVE TUBERCULOSIS, MODERATELY ADVANCED, BUT NOT TO A DEGREE OF PERMANENT AND TOTAL DISABILITY.

UNDER DATE OF JUNE 4, 1925, THE VETERAN MADE APPLICATION FOR REINSTATEMENT OF HIS TERM INSURANCE UNDER SECTION 304, WORLD WAR VETERANS' ACT, AND REMITTED IN CONNECTION WITH THE APPLICATION THE SUM OF $541.95, WHICH IT APPEARS WAS THE AMOUNT STATED BY A REPRESENTATIVE OF THE BUREAU IN A REGIONAL OFFICE AS SUFFICIENT TO COVER THE UNPAID PREMIUMS WITH INTEREST AS REQUIRED BY SECTION 304, WORLD WAR VETERANS' ACT. THIS SUM OF $541.95, AS TENDERED BY THE VETERAN, WAS APPROXIMATELY $10.00 LESS THAN THE AMOUNT NECESSARY TO HAVE REINSTATED. IN THIS CONNECTION IT IS PROPER TO STATE THAT THE REGIONAL OFFICE OF THE VETERANS' BUREAU HAS ADMITTED ITS ERROR IN THUS ADVISING THE VETERAN OF THE NECESSARY AMOUNT TO REMIT. JULY 3, 1925, THE CLAIMANT WAS ADVISED BY THE BUREAU THAT HIS APPLICATION WAS NOT ENTIRELY COMPLETED WITHIN THE TIME LIMIT PRESCRIBED BY LAW, JUNE 7, 1925, BECAUSE THE REMITTANCE OF PREMIUMS WAS NOT SUFFICIENT.

ON NOVEMBER 20, 1925, THE BUREAU ADVISED THE VETERAN THAT HIS APPLICATION FOR REINSTATEMENT WAS ACCEPTABLE UNDER SECTION 304, WORLD WAR VETERANS' ACT OF 1924, AND HE WAS FURTHER ADVISED THAT THE TOTAL AMOUNT THEN NECESSARY FOR REINSTATEMENT WAS $608.21 (AS OF NOVEMBER 20, 1925). HE WAS ALSO INFORMED THAT HE WOULD BE GIVEN CREDIT FOR THE AMOUNT WHICH HE HAD PREVIOUSLY SUBMITTED AND THAT THERE WOULD BE A BALANCE DUE OF $50.30 WHICH HE SHOULD FORWARD TO THE BUREAU WITH A STATEMENT BY THE PHYSICIAN WHO HAD PREVIOUSLY EXAMINED HIM FOR INSURANCE PURPOSES SHOWING THAT HE WAS IN AS GOOD CONDITION ON NOVEMBER 20, 1925, AS HE WAS ON THE DATE HE HAD BEEN EXAMINED FOR INSURANCE, JUNE 4, 1925.

THE VETERAN ON NOVEMBER 30, 1925, ACKNOWLEDGED THE BUREAU LETTER OF NOVEMBER 20, AND ENCLOSED HIS CHECK FOR $50.30 AS AN ADDITIONAL REMITTANCE, TOGETHER WITH A CHECK FOR $6.90 FOR HIS PREMIUM THROUGH DECEMBER. IN RESPONSE TO THE REQUEST OF THE VETERANS' BUREAU THAT HE BE EXAMINED TO DETERMINE WHETHER HE WAS IN AS GOOD CONDITION IN NOVEMBER AS IN JUNE, WHEN FIRST EXAMINED, HE INFORMED THE BUREAU THAT HE HAD GONE TO THE REGIONAL OFFICE AT NASHVILLE, TENN., ON NOVEMBER 25, 1925, FOR EXAMINATION AND HAD THERE BEEN INFORMED THAT THE NECESSARY PHYSICAL REPORTS WOULD BE SENT IN FROM THAT OFFICE.

ON NOVEMBER 16, 1925, THE APPLICATION FOR REINSTATEMENT WAS TENTATIVELY ACCEPTED PENDING RECEIPT OF EVIDENCE TO SHOW THAT THE CLAIMANT WAS IN AS GOOD CONDITION IN NOVEMBER AS IN JUNE. ON NOVEMBER 25, 1925, A RATING WAS MADE CONTINUING THE PREVIOUS RATING OF TEMPORARY PARTIAL 25 PERCENT FROM APRIL 10, 1921, TO JUNE 2, 1924, AND CONTINUING THE RATING OF TEMPORARY PARTIAL 75 PERCENT FROM JUNE 2, 1924, TO NOVEMBER 25, 1925, THE DATE OF THE LATEST EXAMINATION. FROM NOVEMBER 25, 1925, ON, THE VETERAN WAS FOUND PERMANENTLY AND TOTALLY DISABLED.

IN VIEW OF THE DEVELOPMENTS IN THE CASE, TENDING TO INDICATE THAT THERE HAD BEEN DELAY AND IN VIEW OF A QUESTION ARISING AS TO THE ACTUAL CONDITION OF THE VETERAN AT THE TIME HE APPLIED FOR REINSTATEMENT, AND ALSO AS TO HIS CONDITION AT THE TIME HE WAS FOUND PERMANENTLY AND TOTALLY DISABLED, THE CASE WAS REFERRED TO THE APPEAL GROUP ON CENTRAL OFFICE CASES. ON MAY 13, 1926, THE APPEAL GROUP ON CENTRAL OFFICE CASES NOT ONLY CONFIRMED THE PERMANENT AND TOTAL RATING AS OF NOVEMBER 25, 1925, BUT FOUND A PERMANENT AND TOTAL DISABILITY FROM JUNE 2, 1924, A DATE PRIOR TO THE APPLICATION FOR THE REINSTATEMENT OF INSURANCE, WHICH APPLICATION WAS INITIALLY MADE A YEAR LATER; NAMELY, ON JUNE 4, 1925. THE VETERAN DIED ON SEPTEMBER 13, 1926. SINCE THE VETERAN'S DEATH, THE ADVISORY GROUP ON APPEALS ON OCTOBER 14, 1926, CONFIRMED THE RATING OF PERMANENT AND TOTAL DISABILITY FROM JUNE 2, 1924.

YOU HAVE ALSO INCORPORATED IN YOUR LATER SUBMISSION A LETTER TO YOU FROM CONGRESSMAN JOSEPH W. BYRNS SETTING FORTH HIS CONTENTIONS AND ARGUMENTS IN SUPPORT OF THE VIEW THAT THE INSURANCE SHOULD BE CONSIDERED AS LAWFULLY REINSTATED. THESE CONTENTIONS AND ARGUMENTS HAVE BEEN GIVEN CAREFUL CONSIDERATION IN ARRIVING AT THE CONCLUSIONS OF THIS DECISION AND WILL HEREINAFTER BE SPECIFICALLY CONSIDERED AS TO CERTAIN FEATURES.

THE QUESTION HERE PRESENTED IS AS TO WHETHER, UPON THE FACTS SUBMITTED, THE INSURANCE IN THIS CASE MAY BE REGARDED AS HAVING BEEN LEGALLY REINSTATED IN VIEW OF THE PROVISIONS OF SECTION 304 OF THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 625, WHICH REQUIRE AS A PREREQUISITE TO SUCH REINSTATEMENT THAT THE DISABILITY WITH WHICH THE INSURED IS SUFFERING BE SERVICE CONNECTED AND LESS THAN PERMANENT AND TOTAL AT THE TIME REINSTATEMENT OF THE LAPSED OR CANCELED POLICY IS REQUESTED.

IN ADDITION TO THE REQUIREMENT AS TO THE EXTENT AND SERVICE CONNECTION OF THE DISABILITY, THE LAW REQUIRES AS A CONDITION PRECEDENT TO REINSTATEMENT UNDER THE STATUTE THAT THE INSURED PAY THE AMOUNT OF ALL BACK PREMIUMS, TOGETHER WITH INTEREST AT THE RATE OF 5 PERCENT PER ANNUM COMPOUNDED ANNUALLY ON EACH PREMIUM, EXCEPT THAT, UNDER CERTAIN CONDITIONS, THE AMOUNT OF BACK PREMIUMS WITH INTEREST MAY BE PLACED AS AN INTEREST-BEARING INDEBTEDNESS AGAINST THE FACE OF THE POLICY. IF THERE WERE INVOLVED IN THIS CASE NO QUESTION AS TO THE HEALTH CONDITION OF THE INSURED AT THE TIME OF THE FIRST ATTEMPTED REINSTATEMENT, JUNE 4, 1925, THE FACT THAT THE INSURED, DUE TO THE ERROR OF THE VETERANS' BUREAU, HAD PAID A SMALL AMOUNT LESS THAN REQUIRED TO COVER THE BACK PREMIUMS AND INTEREST, WOULD NOT HAVE DEFEATED THE RIGHT TO REINSTATEMENT. 4 COMP. GEN. 443; ID. 656, 658; 5 ID. 672; ID. 933.

WITH REFERENCE TO THE HEALTH-CONDITION REQUIREMENT, IT APPEARS TO HAVE BEEN FINALLY DETERMINED BY THE VETERANS' BUREAU THAT THE INSURED WAS PERMANENTLY AND TOTALLY DISABLED FOR MORE THAN A YEAR PRIOR TO HIS REQUEST FOR REINSTATEMENT. APPARENTLY THE MEDICAL EXAMINATION MADE BY THE BUREAU FOR INSURANCE PURPOSES, NOVEMBER 25, 1925, RESULTED IN A FINDING OF PERMANENT AND TOTAL DISABILITY FROM THE DATE OF EXAMINATION, JUST NINE DAYS AFTER THE APPLICATION FOR REINSTATEMENT HAD BEEN TENTATIVELY ACCEPTED. THIS RATING WOULD HAVE MATURED THE POLICY IMMEDIATELY--- IF THERE HAD BEEN A LEGAL REINSTATEMENT--- AND STOPPED THE RUNNING OF THE SIX MONTHS' PERIOD FIXED BY SECTION 307 OF THE STATUTE SUBSEQUENT TO WHICH THE REINSTATED POLICY WOULD HAVE BEEN INCONTESTABLE AS TO HEALTH CONDITION. IN OTHER WORDS, ON THE BASIS OF THE DETERMINATION AS THEN MADE TO THE EFFECT THAT PERMANENT AND TOTAL DISABILITY DID NOT EXIST PRIOR TO NOVEMBER 25, 1925, AS THE PERIOD BETWEEN THE DATE OF THE TENTATIVE REINSTATEMENT AND THE DATE OF THE EXAMINATION ON WHICH HE WAS FOUND PERMANENTLY AND TOTALLY DISABLED WAS LESS THAN SIX MONTHS, THE TENTATIVE REINSTATEMENT COULD NOT HAVE BECOME INCONTESTABLE UNDER THE STATUTE.

IN DECISION OF SEPTEMBER 29, 1927, 7 COMP. GEN. 248, IN THE CASE OF FRANK BOEHLER, TO WHICH CONGRESSMAN BYRNS REFERS, IT WAS HELD (QUOTING FROM THE SYLLABUS):

A RATING OF PERMANENT TOTAL DISABILITY MADE BEFORE THE EXPIRATION OF THE PERIOD OF SIX MONTHS IMMEDIATELY FOLLOWING THE ACCEPTANCE OF THE APPLICATION FOR REINSTATEMENT OF INSURANCE RETROACTIVELY EFFECTIVE AS OF A DATE PRIOR TO THE APPLICATION FOR REINSTATEMENT, HAS THE EFFECT OF NULLIFYING THE REINSTATEMENT AND NO INSURANCE IS PROPERLY PAYABLE THEREUNDER.

SEE ALSO, DECISION OF JANUARY 23, 1928, A-20947, 7 COMP. GEN. 431, WHEREIN IT WAS HELD THAT DEATH STOPPED THE RUNNING OF THE SIX MONTHS' PERIOD OF INCONTESTABILITY.

THE PRINCIPLE ANNOUNCED IN THESE DECISIONS, AND WHICH IS FOR APPLICATION IN THE PRESENT CASE, IS BASED ON THAT PORTION OF SECTION 307 OF THE STATUTE, CONTAINING THE INCONTESTABLE CLAUSE, THAT PROVIDES WAR-RISK INSURANCE MUST BE "IN FORCE" SIX MONTHS FROM DATE OF ISSUANCE OR REINSTATEMENT BEFORE SAME SHALL BE INCONTESTABLE.

IN AN OPINION OF THE ATTORNEY GENERAL, DATED JANUARY 4, 1921, 32 OP.ATTY.GEN. 379, 386, IT WAS STATED:

THE TERM POLICY HAVING MATURED INTO A CLAIM BY THE HAPPENING OF THE EVENT INSURED AGAINST IT CEASES TO CONSTITUTE "INSURANCE.'

IF THERE IS NO "INSURANCE" AFTER DEATH OR THE HAPPENING OF PERMANENT TOTAL DISABILITY, IT COULD NOT BE HELD THAT THE INSURANCE WAS "IN FORCE" FOR SIX MONTHS WHEN EITHER OF THOSE CONTINGENCIES INSURED AGAINST OCCURRED DURING SUCH PERIOD.

IN ANNOUNCING THIS PRINCIPLE UNDER THE INCONTESTABLE CLAUSE OF THE WORLD WAR VETERANS' ACT, THERE HAVE NOT BEEN OVERLOOKED THE DECISIONS OF THE FEDERAL AND STATE COURTS CONSTRUING INCONTESTABLE CLAUSES UNDER COMMERCIAL LIFE INSURANCE. ATTENTION IS INVITED IN THIS CONNECTION TO THE CASE OF MUTUAL LIFE INSURANCE COMPANY OF NEW YORK V. HURNI PACKING COMPANY, 263 U.S. 167, DECIDED NOVEMBER 12, 1923, WHEREIN IT WAS HELD THAT THE DEATH OF THE INSURED DID NOT STOP THE RUNNING OF THE INCONTESTABLE PERIOD. ON PAGE 178 OF THE REPORTED CASE THE COURT WAS CAREFUL TO DISTINGUISH BETWEEN THE INCONTESTABLE CLAUSE BEFORE THEM FOR CONSIDERATION FROM AN INCONTESTABLE CLAUSE CONSIDERED IN TWO CITED CASES, ONE A FEDERAL CASE, WHICH CONTAINED THE WORDS "IN FORCE," AND REFUSED TO RULE ON WHAT EFFECT THE PRESENCE OF THOSE WORDS IN THE INCONTESTABLE CLAUSE WOULD HAVE OR WHETHER THE COURT'S CONCLUSION WOULD HAVE BEEN DIFFERENT IF THOSE WORDS HAD APPEARED IN THE INCONTESTABLE CLAUSE BEFORE IT. HOWEVER, THE FEDERAL CASE CITED, JEFFERSON STANDARD LIFE INSURANCE COMPANY V. MCINTYRE, ET AL., 285 FED.REP. 570, WAS APPEALED TO THE CIRCUIT COURT OF APPEALS, FIFTH CIRCUIT, AND IN DECISION DATED DECEMBER 18, 1923, 294 FED.REP. 886, THE CIRCUIT COURT REVERSED THE LOWER COURT AND APPLIED THE CONCLUSIONS OF THE SUPREME COURT IN THE ABOVE CITED CASE IN SUPPORT OF ITS HOLDING THAT EVEN UNDER AN INCONTESTABLE CLAUSE CONTAINING THE WORDS ,IN/FORCE" DEATH WOULD NOT STOP THE RUNNING OF THE PERIOD OF INCONTESTABILITY.

WHETHER OR NOT THE CIRCUIT COURT OF APPEALS WAS JUSTIFIED IN THUS APPLYING THE CONCLUSIONS OF THE SUPREME COURT IS NOT HERE INVOLVED. THERE ARE SEVERAL STATE CASES IN WHICH THE CONTRARY VIEW IS EXPRESSED. THIS OFFICE DOES NOT FEEL JUSTIFIED IN ACCEPTING THE APPLICATION MADE BY THE CIRCUIT COURT IN A CASE INVOLVING COMMERCIAL INSURANCE AS NECESSARILY CONTROLLING IN THE CONSTRUCTION OF SECTION 307 OF THE WORLD WAR VETERANS' ACT. WAR-RISK LIFE INSURANCE IS MATERIALLY DIFFERENT FROM COMMERCIAL LIFE INSURANCE IN THAT IT IS ISSUED AGAINST BOTH DEATH AND PERMANENT TOTAL DISABILITY AND MAY BE REINSTATED AT A TIME WHEN THE INSURED IS SUFFERING FROM A SERVICE CONNECTED TEMPORARY TOTAL DISABILITY. THE DEGREE OF THE DISABILITY IS FOR DETERMINATION BY THE VETERANS' BUREAU, AND THERE IS RECOGNIZED THE RIGHT OF THE BUREAU TO REVIEW ITS FINDINGS TO CORRECT AN ERROR. AS THE STATUTE IS MOST LIBERAL TOWARD THE INSURED WITH RESPECT TO REINSTATEMENT OF INSURANCE HE HAS ALLOWED TO LAPSE DURING A PERIOD OF YEARS WHEN HE WOULD NOT OTHERWISE CONSTITUTE AN INSURABLE RISK UNDER COMMERCIAL LIFE INSURANCE, THE RIGHT OF THE BUREAU TO REVIEW ITS FINDING TO CORRECT AN ERROR IN THE RATING OF THE INSURED AS OF THE DATE OF REINSTATEMENT MAY NOT BE DENIED BY A QUESTIONABLE CONSTRUCTION OF THE INCONTESTABLE CLAUSE OF THE STATUTE. THE CONGRESS IN PLAIN TERMS HAS SOUGHT TO EXCLUDE FROM THE RIGHT TO REINSTATEMENT OF INSURANCE VETERANS WHO HAVE BECOME PERMANENTLY AND TOTALLY DISABLED. IN ITS LIBERALITY THE GOVERNMENT HAS REMOVED OTHER CONDITIONS SUCH AS COMMERCIAL LIFE INSURANCE COMPANIES WOULD IMPOSE AS ESSENTIAL TO REINSTATEMENT. BUT AS THE LAW SPECIFICALLY STIPULATES THAT THERE CAN BE NO REINSTATEMENT IF THE INSURED IS PERMANENTLY AND TOTALLY DISABLED WHEN ATTEMPTING TO REINSTATE HIS INSURANCE, IT IS THE PLAIN DUTY OF THE BUREAU TO GIVE FULL FORCE AND EFFECT TO SAID STIPULATION BY ASCERTAINING DEFINITELY THE CONDITION OF THE APPLICANT'S HEALTH AT THE TIME REINSTATEMENT IS REQUESTED.

ASSUMING, FOR THE PURPOSE OF ANSWERING THE CONTENTIONS OF CONGRESSMAN BYRNS, THAT HAD IT NOT BEEN FOR THE ERRORS OF THE BUREAU WITH RESPECT TO ADVISING THE INSURED AS TO THE AMOUNT OF BACK PREMIUMS DUE THE INSURANCE MIGHT HAVE BEEN ACCEPTED FOR REINSTATEMENT JUNE 4, 1925, DATE OF APPLICATION BY THE INSURED, EVEN THEN THE INSURANCE WOULD NOT HAVE BEEN IN FORCE FOR A PERIOD OF SIX MONTHS BECAUSE THE RATING OF PERMANENT AND TOTAL DISABILITY ON NOVEMBER 25, 1925, WAS WITHIN THE SIX MONTHS' PERIOD AFTER JUNE 4, 1925.

IN THIS CASE, THE REVIEW RATING WAS MADE MAY 13, 1926, PRIOR TO THE DEATH OF THE INSURED, WHICH OCCURRED SEPTEMBER 13, 1926, SO THAT THERE DOES NOT APPEAR TO ARISE THE QUESTION SUGGESTED BY THE CONGRESSMAN THAT A POST- MORTEM RATING COULD NOT BE EFFECTIVE TO INVALIDATE A REINSTATEMENT OF INSURANCE MADE DURING THE LIFE OF THE VETERAN.

CONGRESSMAN BYRNS ALSO REFERS TO THE VIEW EXPRESSED IN THE ATTORNEY GENERAL'S OPINION OF JANUARY 4, 1921, SUPRA, TO THE EFFECT THAT A RATING OF PERMANENT TOTAL DISABILITY COULD NOT BE MADE RETROACTIVELY EFFECTIVE BY THE BUREAU TO A DATE PRIOR TO THE CONVERSION OF TERM INSURANCE SO AS TO DEFEAT THE CONVERSION. THIS OFFICE EXPRESSED THE SAME VIEW IN DECISION OF JUNE 27, 1922, 1 COMP. GEN. 756, 758, BUT THE POINT THUS INVOLVED WAS CAREFULLY DISTINGUISHED FROM REINSTATEMENTS INVOLVING THE INCONTESTABLE CLAUSE, IN DECISION OF SEPTEMBER 27, 1927, CASE OF FRANK BOEHLER, 7 COMP. GEN. 248, 249.

AFTER A CAREFUL CONSIDERATION OF ALL THAT HAS BEEN SUBMITTED, THE ESSENTIAL FACTS APPEAR TO BE (1) THAT MCNISH WAS PERMANENTLY AND TOTALLY DISABLED AT THE TIME HE APPLIED FOR REINSTATEMENT JUNE 4, 1925, AND (2) THAT HIS INSURANCE WAS NOT IN FORCE FOR A PERIOD OF SIX MONTHS AT ANY TIME AFTER JUNE 4, 1925. IN VIEW OF THESE FACTS, I HAVE TO ADVISE THAT THE POLICY MAY NOT BE CONSIDERED AS HAVING BEEN LAWFULLY REINSTATED AND THAT PAYMENTS OF INSURANCE THEREUNDER ARE NOT AUTHORIZED.