A-24374, FEBRUARY 9, 1929, 8 COMP. GEN. 416

A-24374: Feb 9, 1929

Additional Materials:

Contact:

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

 

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

VETERANS' BUREAU - DISABILITY COMPENSATION - PRESUMPTIVE SERVICE CONNECTION IN THE CASE OF A PHYSICAL DEFECT KNOWN TO HAVE EXISTED ALTHOUGH NOT NOTED OF RECORD UPON ENTRANCE INTO THE SERVICE. THE PHYSICAL DEFECT ITSELF IS PRESUMED UNDER SECTION 200 OF THE WORLD WAR VETERANS' ACT TO HAVE BEEN INCURRED AS IN THE SERVICE. ANY DISABILITY DEVELOPING SINCE DISCHARGE INVOLVING SUCH PHYSICAL DEFECT IS NOT PRESUMED TO HAVE BEEN DUE TO MILITARY SERVICE AND COMPENSATION WOULD BE PAYABLE ONLY IF THE PRESENT DISABILITY OF A COMPENSABLE DEGREE IS DETERMINED BY THE VETERANS' BUREAU TO HAVE BEEN DUE ALONE TO THE NORMAL PROGRESS OF THE PHYSICAL DEFECT PRESUMED UNDER THE STATUTE TO HAVE BEEN SERVICE CONNECTED.

A-24374, FEBRUARY 9, 1929, 8 COMP. GEN. 416

VETERANS' BUREAU - DISABILITY COMPENSATION - PRESUMPTIVE SERVICE CONNECTION IN THE CASE OF A PHYSICAL DEFECT KNOWN TO HAVE EXISTED ALTHOUGH NOT NOTED OF RECORD UPON ENTRANCE INTO THE SERVICE, BUT NOTED OF RECORD UPON DISCHARGE, TOGETHER WITH A NOTATION OF NO DISABILITY ON ACCOUNT THEREOF, THE PHYSICAL DEFECT ITSELF IS PRESUMED UNDER SECTION 200 OF THE WORLD WAR VETERANS' ACT TO HAVE BEEN INCURRED AS IN THE SERVICE, BUT ANY DISABILITY DEVELOPING SINCE DISCHARGE INVOLVING SUCH PHYSICAL DEFECT IS NOT PRESUMED TO HAVE BEEN DUE TO MILITARY SERVICE AND COMPENSATION WOULD BE PAYABLE ONLY IF THE PRESENT DISABILITY OF A COMPENSABLE DEGREE IS DETERMINED BY THE VETERANS' BUREAU TO HAVE BEEN DUE ALONE TO THE NORMAL PROGRESS OF THE PHYSICAL DEFECT PRESUMED UNDER THE STATUTE TO HAVE BEEN SERVICE CONNECTED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, FEBRUARY 9, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 7, 1928, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

THIS BUREAU DESIRES TO PRESENT FOR YOUR CONSIDERATION AND DECISION THE CASE OF LUBIA MCDONALD, C-1327166, WHOSE CLAIM FOR COMPENSATION UNDER THE WORLD WAR VETERANS' ACT, AS AMENDED, IS NOW PENDING BEFORE THE BUREAU.

THIS CLAIMANT ENTERED SERVICE APRIL 30, 1918, WITH DEFECTS NOTED AT ENLISTMENT "FOUR MISSING TEETH, RIGHT UPPER NO. 8, LOWER NO. 7 AND NO. 8. LEFT UPPER NO. 8. APPLICANT ALLEGES NO DISABILITY.' DEFECTS NOTED BY DRAFT BOARD, FEET, SLIGHTLY FLAT. HE WAS ACCEPTED FOR GENERAL SERVICE AND WAS HONORABLY DISCHARGED AUGUST 1, 1919, WITH DEFECTS NOTED "RIGHT LEG SHORTENED, EPTE. NO DISABILITY," THERE IS NO RECORD OF TREATMENT FOR ANY CONDITION IN SERVICE.

AN APPLICATION FOR COMPENSATION WAS EXECUTED FEBRUARY 13, 1925, NATURE OF DISABILITY CLAIMED ,DISLOCATION," THE DATE THE DISABILITY BEGAN, THE CAUSE OF DISABILITY, AND WHERE RECEIVED BEING LEFT BLANK UPON THE APPLICATION.

THE CLAIMANT WAS EXAMINED UNDER DATE OF MAY 6, 1925, AND DIAGNOSIS WAS MADE OF "ARTHRITIS, CHRONIC, RIGHT HIP; RIGHT HIP LAME--- A.G.O. SHORTENING 2 INCHES, FLEXION RIGHT THIGH LIMITED TO 180 DEGREES TO 150 DEGREES; NONACTIVE BONY ANKYLOSIS--- PARTIAL.'

IN CONNECTION WITH THE CLAIM MR. JAMES A. HOUSTON SUBMITTED AN AFFIDAVIT TO THE EFFECT THAT HE HAS KNOWN CLAIMANT FOR SIXTEEN YEARS; WAS WITH HIM IN SERVICE FOR NINE MONTHS AND KNOWS THAT HE HAD A DISLOCATED JOINT OF THE RIGHT HIP BEFORE HE ENTERED SERVICE.

DR. C. E. DUNGAN ALSO SUBMITTED AN AFFIDAVIT ALLEGING THAT HE FIRST EXAMINED CLAIMANT AFTER DISCHARGE, ON FEBRUARY 9, 1925, AT WHICH TIME THE COMPLAINT WAS "UNREDUCED DISLOCATION OF RIGHT HIP JOINT, DISLOCATION BEING ANTERIORLY," THAT UPON PHYSICAL EXAMINATION AN UNREDUCED DISLOCATION OF RIGHT HIP JOINT ANTERIORLY AND ATROPHY OF MUSCLES OF THE THIGH WERE FOUND, AND THE DIAGNOSIS BY THE DOCTOR WAS UNREDUCED DISLOCATION OF THE RIGHT HIP JOINT WITH PARTIAL ANKYLOSIS OF JOINT. PROGNOSIS: "DEFORMITY IS PERMANENT," THE DOCTOR FURTHER STATED" THAT INJURY WAS RECEIVED FEBRUARY, 1912, BEFORE HE ENTERED THE ARMY.'

SERVICE CONNECTION ON THE EVIDENCE SET FORTH ABOVE WAS DENIED BY THE CLAIMS AND RATING BOARD ON MAY 11, 1925, AND AFTER THE CLAIMANT WAS NOTIFIED OF THE DENIAL OF HIS CLAIM, HE SUBMITTED A LETTER IN WHICH IT IS STATED THAT HE HAD THE DISABILITY WHEN HE ENTERED THE MILITARY SERVICE.

UNDER THE PRESUMPTION OF SOUNDNESS AS CONTAINED IN SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, IT WOULD APPEAR THAT COMPENSATION IS PAYABLE IN THIS CASE, SINCE NO RECORD WAS MADE OF THE CLAIMANT'S DISABILITY IN ANY MANNER BY PROPER AUTHORITIES OF THE UNITED STATES AT THE TIME OR PRIOR TO CLAIMANT'S INCEPTION INTO ACTIVE SERVICE, AND AT THE TIME OF HIS DISCHARGE THE DISABILITY DIAGNOSED AS ABOVE EXISTED. * * *

THERE IS INVOLVED IN THIS CASE APPLICATION OF THE FOLLOWING STATUTORY PRESUMPTION CONTAINED IN SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF JULY 2, 1926, 44 STAT. 793:

* * * THAT FOR THE PURPOSES OF THIS ACT EVERY SUCH OFFICER, ENLISTED MAN, OR OTHER MEMBER EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT WHO WAS DISCHARGED OR WHO RESIGNED PRIOR TO JULY 2, 1921, AND EVERY SUCH OFFICER, ENLISTED MAN, OR OTHER MEMBER EMPLOYED IN THE ACTIVE SERVICE UNDER THE WAR DEPARTMENT OR NAVY DEPARTMENT ON OR BEFORE NOVEMBER 11, 1918, WHO ON OR AFTER JULY 2, 1921, IS DISCHARGED OR RESIGNS, SHALL BE CONCLUSIVELY HELD AND TAKEN TO HAVE BEEN IN SOUND CONDITION WHEN EXAMINED, ACCEPTED, AND ENROLLED FOR SERVICE, EXCEPT AS TO DEFECTS, DISORDERS, OR INFIRMITIES MADE OF RECORD IN ANY MANNER BY PROPER AUTHORITIES OF THE UNITED STATES AT THE TIME OF, OR PRIOR TO, INCEPTION OF ACTIVE SERVICE, TO THE EXTENT TO WHICH ANY SUCH DEFECT, DISORDER, OR INFIRMITY WAS SO MADE OF RECORD: * * *.

OTHER THAN AS TO DEFECTS NOTED OF RECORD AT OR BEFORE ENTRANCE INTO SERVICE, BECAUSE OF THIS PROVISION OF LAW THE SOLDIER IS TO BE REGARDED, FOR THE PURPOSES OF THE WORLD WAR VETERANS' ACT, AS HAVING BEEN IN SOUND PHYSICAL CONDITION AT THE TIME OF SUCH ENTRANCE. AS A RESULT IT IS NOW TO BE ASSUMED IN THIS CASE THAT THE DISLOCATION AND RESULTING SHORTNESS OF LEG OCCURRED AS DURING MILITARY SERVICE. IT IS TO BE OBSERVED IN THIS CONNECTION, HOWEVER, THAT AT THE TIME OF DISCHARGE FROM THE SERVICE THIS PHYSICAL DEFECT WAS NOTED, AND THAT THE RECORD THEN MADE DISCLOSES THERE WAS THEN NO DISABILITY BECAUSE THEREOF, AND NO RECORD OF TREATMENT FOR ANY CONDITION IN SERVICE. IF THERE HAS DEVELOPED A DISABILITY SINCE DISCHARGE, INVOLVING SUCH DISLOCATED JOINT, THERE IS NO PRESUMPTION PERMITTED THAT SUCH PRESENT CONDITION IS DUE TO MILITARY SERVICE--- THOUGH IT MAY BE. FOR INSTANCE, IF, DUE TO SOME ACCIDENT OCCURRING SINCE DISCHARGE, THE CONDITION NOTED AT DISCHARGE HAS BECOME AGGRAVATED THE AGGRAVATION DUE TO SUCH ACCIDENT WOULD NOT BE, OF COURSE, A COMPENSABLE DISABILITY UNDER THE WORLD WAR VETERANS' ACT. IF, HOWEVER, THERE EXISTS PRESENT DISABILITY OF A COMPENSABLE DEGREE, DUE ALONE TO THE NORMAL PROGRESS OF THE PHYSICAL DEFECT KNOWN TO HAVE EXISTED BUT NOT NOTED OF RECORD AT ENTRANCE INTO SERVICE, AND THEREFORE NOW PRESUMED TO BE AS OF SERVICE ORIGIN, THIS OFFICE WILL HAVE NO OBJECTION TO PAYMENTS ACCORDINGLY IF OTHERWISE LAWFUL.