A-24541, FEBRUARY 9, 1929, 8 COMP. GEN. 418

A-24541: Feb 9, 1929

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WAS INTENDED TO INCLUDE ONLY THE DISEASE USUALLY AND COMMONLY KNOWN AND UNDERSTOOD BY THAT NAME. THERE SEEMS ROOM FOR MOST SERIOUS DOUBT WHETHER THE STATUTE JUSTIFIES PROMULGATION OF REGULATIONS BY THE VETERANS' BUREAU TO INCLUDE WITHIN THE TERM "SPINAL MENINGITIS" AS USED IN THE STATUTE "FORMS OF MENINGITIS WHICH ARE SECONDARY TO DISEASES OR INJURIES NOT THEMSELVES SERVICE CONNECTED.'. RELATING TO THE CONCLUSIVE PRESUMPTION OF SERVICE CONNECTION WHERE SPINAL MENINGITIS IS SHOWN TO EXIST TO A DEGREE OF TEN PERCENT OR MORE UNDER THE SCHEDULE OF DISABILITY RATINGS PRIOR TO JANUARY 1. THE CAUSE OF DEATH WAS STATED AS "MENINGITIS. THE FRACTURE OF THE SKULL WAS THE RESULT OF AN AUTOMOBILE ACCIDENT WHICH OCCURRED SUBSEQUENT TO THE CLAIMANT'S DISCHARGE FROM THE MILITARY SERVICE.

A-24541, FEBRUARY 9, 1929, 8 COMP. GEN. 418

VETERANS' BUREAU - DISABILITY COMPENSATION - PRESUMPTIVE SERVICE CONNECTION THE DISEASE "SPINAL MENINGITIS" SPECIFICALLY NAMED IN SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, TO BE REGARDED AS CONCLUSIVELY OF SERVICE ORIGIN IF EXISTING PRIOR TO JANUARY 1, 1925, WAS INTENDED TO INCLUDE ONLY THE DISEASE USUALLY AND COMMONLY KNOWN AND UNDERSTOOD BY THAT NAME, AND THERE SEEMS ROOM FOR MOST SERIOUS DOUBT WHETHER THE STATUTE JUSTIFIES PROMULGATION OF REGULATIONS BY THE VETERANS' BUREAU TO INCLUDE WITHIN THE TERM "SPINAL MENINGITIS" AS USED IN THE STATUTE "FORMS OF MENINGITIS WHICH ARE SECONDARY TO DISEASES OR INJURIES NOT THEMSELVES SERVICE CONNECTED.'

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

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 20, 1928, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

A QUESTION HAS BEEN RAISED IN THE CASE OF BASIL H. WETTA, XC 671091, AS TO THE APPLICATION OF THE SECOND PROVISO OF SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED, RELATING TO THE CONCLUSIVE PRESUMPTION OF SERVICE CONNECTION WHERE SPINAL MENINGITIS IS SHOWN TO EXIST TO A DEGREE OF TEN PERCENT OR MORE UNDER THE SCHEDULE OF DISABILITY RATINGS PRIOR TO JANUARY 1, 1925.

IN THE CASE REFERRED TO THE CLAIMANT DIED ON FEBRUARY 10, 1925, AND THE CAUSE OF DEATH WAS STATED AS "MENINGITIS," CONTRIBUTORY CAUSE; "FRACTURE OF SKULL.' THE FRACTURE OF THE SKULL WAS THE RESULT OF AN AUTOMOBILE ACCIDENT WHICH OCCURRED SUBSEQUENT TO THE CLAIMANT'S DISCHARGE FROM THE MILITARY SERVICE, AND ABOUT TWELVE DAYS PRIOR TO HIS DEATH. THE CAUSE OF DEATH HAS BEEN HELD BY THE BUREAU TO BE MENINGITIS (SECONDARY FRACTURE OF SKULL) AND SUCH DISEASE HAS BEEN RATED AS SERVICE CONNECTED UNDER THE SECOND PROVISO OF SECTION 200 OF THE WORLD WAR VETERANS' ACT, AS AMENDED. THE RATING GRANTING SERVICE CONNECTION HAS BEEN QUESTIONED IN VIEW OF THE EVIDENCE SHOWING THE ORIGIN AND TIME OF INCURRENCE OF SUCH DISEASE.

SECTION 200, SECOND PROVISO OF THE WORLD WAR VETERANS' ACT, AS AMENDED JULY 2, 1926, READS AS FOLLOWS:

"THAT AN EX-SERVICE MAN WHO IS SHOWN TO HAVE OR, IF DECEASED, TO HAVE HAD, PRIOR TO JANUARY 1, 1925, NEUROPSYCHIATRIC DISEASE AND SPINAL MENINGITIS, AN ACTIVE TUBERCULOSIS DISEASE, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMOEBIC DYSENTERY DEVELOPING A 10 PERCENTUM DEGREE OF DISABILITY OR MORE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (4) OF SECTION 202 OF THIS ACT, SHALL BE PRESUMED TO HAVE ACQUIRED HIS DISABILITY IN SUCH SERVICE BETWEEN APRIL 6, 1917, AND JULY 2, 1921, OR TO HAVE SUFFERED AN AGGRAVATION OF A PREEXISTING NEUROPSYCHIATRIC DISEASE AND SPINAL MENINGITIS, TUBERCULOSIS, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMOEBIC DYSENTERY ,IN SUCH SERVICE BETWEEN SAID DATES, AND SAID PRESUMPTION SHALL BE CONCLUSIVE IN CASES OF ACTIVE TUBERCULOSIS DISEASE AND SPINAL MENINGITIS, BUT IN ALL OTHER CASES SAID PRESUMPTION SHALL BE REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE; BUT NOTHING IN THIS PROVISO SHALL BE CONSTRUED TO PREVENT A CLAIMANT FROM RECEIVING THE BENEFITS OF COMPENSATION AND MEDICAL CARE AND TREATMENT FOR A DISABILITY DUE TO THESE DISEASES OF MORE THAN 10 PERCENTUM DEGREE (IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (4) OF SECTION 202 OF THIS ACT) ON OR SUBSEQUENT TO JANUARY 1, 1925, IF THE FACTS IN THE CASE SUBSTANTIATE HIS CLAIM.'"

REGULATION NUMBER 143 IN REFERENCE TO SPINAL MENINGITIS READS IN PART AS FOLLOWS:

"SPINAL MENINGITIS, FOR THE PURPOSES OF THIS SECTION, WILL BE INTERPRETED AS CEREBROSPINAL FEVER, OR CEREBROSPINAL MENINGITIS, I.E., THE INFECTIOUS DISEASE DUE TO THE MENINGOCOCCUS, AFFECTING PRIMARILY THE CEREBROSPINAL MENINGES, AND OCCURRING EPIDEMICALLY OR SPORADICALLY. IT WILL ALSO BE TAKEN TO INCLUDE OTHER PRIMARY FORMS OR MENINGITIS, SUCH AS PRIMARY PNEUMOCOCCIC OR STREPTOCOCCIC MENINGITIS, WHERE THE CEREBROSPINAL MENINGES ARE INVOLVED ALONE OR AS A PART OF A GENERALIZED PNEUMOCOCCIC OR STREPTOCOCCIC SEPTICAEMIA.

"THE PRESUMPTION OF SERVICE CONNECTION BEING CONCLUSIVE IN REGARD TO IT, SPINAL MENINGITIS WILL INCLUDE FORMS OF MENINGITIS WHICH ARE SECONDARY TO DISEASES OR INJURIES NOT THEMSELVES SERVICE CONNECTED, SUCH AS (1) THE PNEUMOCOCCIC FORM WHICH IS SECONDARY TO INTERCURRENT PNEUMONIA, ENDOCARDITIS, OR DISEASE OR INJURY OF THE THE CRANIUM OR ITS FOSSAE; (2) THE PYOGENIC FORM, FOLLOWING INTERCURRENT INFECTIONS ELSEWHERE IN THE BODY, OR OCCURRING AS A TERMINAL CONDITION IN CHRONIC MALADIES; (3) THE MISCELLANEOUS FORMS, SUCH AS THE MENINGITIS SECONDARILY SUPERVENING AN INTERCURRENT TYPHOID, DIPHTHERIA, INFLUENZA, ETC. BUT DISABILITY FROM INFLAMMATION OF THE SPINAL MENINGES OCCURRING IN CEREBROSPINAL SYPHILIS WILL BE RATED WITH THE MISCONDUCT PROVISION OF THE LAW IN MIND. (V.B. REGULATION NO. 143, EFFECTIVE, JULY 2, 1926.)

THE MEDICAL DIRECTOR HAS HELD IN THIS CASE THAT THE "MENINGITIS" WHICH IS RECORDED AS CAUSING THE DEATH OF THIS CLAIMANT IS SYNONYMOUS, FROM A MEDICAL POINT OF VIEW, WITH "SPINAL MENINGITIS" AS THAT TERM IS USED IN THE SECOND PROVISO OF SECTION 200, OF THE WORLD WAR VETERANS' ACT, AS AMENDED.

THE CONGRESS HAD ITS REASON, OF COURSE, FOR REQUIRING THE PRESUMPTION OF SERVICE ORIGIN OR AGGRAVATION TO BE REGARDED CONCLUSIVE AS TO CASES OF ACTIVE TUBERCULOSIS AND SPINAL MENINGITIS; AND, WHATEVER THAT REASON MAY HAVE BEEN, IN VIEW OF THE FACT THAT THE PRESUMPTION WAS MADE CONCLUSIVE WITH RESPECT TO THESE TWO DISEASES ONLY -- THE PRESUMPTION AS TO THE FOUR OTHER DISEASES SPECIFICALLY MENTIONED BEING REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE--- A GRAVE RESPONSIBILITY EXISTS IN THE ADMINISTRATION OF THE LAW NOT TO EXPAND OR ENLARGE THE PURPOSE OF THE CONGRESS, BUT TO SO ADMINISTER IT AS TO AVOID OR MINIMIZE SEEMINGLY UNFAIR APPLICATIONS OF THE BENEFITS PROVIDED. THE TWO DISEASES SPECIFICALLY MENTIONED, TO BE REGARDED AS CONCLUSIVELY OF SERVICE ORIGIN IF EXISTING PRIOR TO JANUARY 1, 1925, NAMELY, ACTIVE TUBERCULOSIS AND SPINAL MENINGITIS, ARE WELL KNOWN AND, WITHOUT DOUBT, AS SO KNOWN WERE CONSIDERED AND NAMED IN THE LAW. CONSEQUENTLY, IT WOULD BE UNWARRANTED TO ENLARGE THE PURPOSE OF THE CONGRESS THROUGH SUCH ADMINISTRATION OF THE LAW, BY REGULATION PURPORTED TO BE ISSUED PURSUANT THERETO, OR OTHERWISE, AS WOULD OPERATE TO INCLUDE AS "ACTIVE TUBERCULOSIS" OR AS "SPINAL MENINGITIS" CASES WHICH, WHILE PERHAPS POSSIBLE OF INCLUSION, FROM A MEDICAL POINT OF VIEW ALONE, THROUGH BEING SECONDARILY OR OTHERWISE INVOLVED, ARE NOT CLEARLY OF THE TYPE INTENDED BY THE CONGRESS. FOR INSTANCE, THERE SEEMS ROOM FOR MOST SERIOUS DOUBT WHETHER THE STATUE JUSTIFIES ALL OF THE SECOND PARAGRAPH QUOTED ABOVE FROM REGULATION NO. 143 PURPORTING, FOR INSTANCE, TO INCLUDE WITHIN THE TERM "SPINAL MENINGITIS" AS USED IN THE STATUTE,"FORMS OF MENINGITIS WHICH ARE SECONDARY TO DISEASES OR INJURIES NOT THEMSELVES SERVICE CONNECTED.' IT WOULD APPEAR REASONABLE TO ASSUME, ON THE CONTRARY, THAT THE TERM "SPINAL MENINGITIS" AS USED IN THE STATUTE WAS INTENDED TO INCLUDE ONLY THE DISEASE USUALLY AND COMMONLY KNOWN AND UNDERSTOOD BY THAT NAME.

OTHER ESSENTIAL ELEMENTS BEING APPARENTLY PRESENT IN THE CASE, AS INDICATED BY YOUR SUBMISSION, FINAL DISPOSITION APPEARS TO DEPEND UPON A DETERMINATION WHETHER THE CAUSE OF DEATH,"MENINGITIS" FOLLOWING FRACTURE OF SKULL SUSTAINED IN AN AUTOMOBILE ACCIDENT ABOUT 12DAYS PRIOR TO DEATH, WAS IN FACT THE DISEASE "SPINAL MENINGITIS," AS THE TERM WAS EMPLOYED BY THE CONGRESS IN THE CONTROLLING ENACTMENT.

THE PRIMARY DUTY AND RESPONSIBILITY IN THIS MATTER RESTS UPON THE DIRECTOR OF THE VETERANS' BUREAU, AND THIS OFFICE WILL NOT, ORDINARILY, AND IN THE ABSENCE OF WHAT SEEMS TO BE A MISTAKE OR ERROR, QUESTION HIS DETERMINATION THAT A PARTICULAR CASE IS "ACTIVE TUBERCULOSIS" OR "SPINAL MENINGITIS" WITHIN THE MEANING OF THE LAW HERE IN QUESTION. IT WOULD APPEAR PROPER IN SUCH CASES, HOWEVER, THAT THERE BE OF RECORD A SPECIFIC FINDING THAT EACH PARTICULAR CASE IS "ACTIVE TUBERCULOSIS" OR SPINAL MENINGITIS" WITHIN THE MEANING OF THE SO-CALLED CONCLUSIVE PRESUMPTION CLAUSE OF SECTION 200 OF THE LAW. THE VIEW MENTIONED IN YOUR LETTER AS HELD BY THE MEDICAL DIRECTOR--- THAT THE "MENINGITIS" WHICH IS RECORDED AS CAUSING THE DEATH IN THIS CASE IS SYNONYMOUS, FROM A MEDICAL POINT OF VIEW, WITH "SPINAL MENINGITIS" AS THE TERM IS USED IN SECTION 200 OF THE ENACTMENT--- MAY NOT BE REGARDED AS COMPLIANCE WITH THE REQUIREMENT FOR A SPECIFIC DETERMINATION HEREIN POINTED OUT AS NECESSARY.

DISPOSITION OF THE CASE MAY FOLLOW SUCH SPECIFIC DETERMINATION AS THE VETERANS' BUREAU MAY MAKE THEREIN PURSUANT HERETO.

THERE WOULD APPEAR FOR EARLY CONSIDERATION BY YOU THE REGULATIONS HERETOFORE MENTIONED, WITH A VIEW TO MAKING ANY ELIMINATIONS OR AMENDMENTS NECESSARY TO BRING THE REGULATIONS WITHIN THE INTENT OF THE CONTROLLING LAW.