A-25380, FEBRUARY 4, 1929, 8 COMP. GEN. 401

A-25380: Feb 4, 1929

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A RATING WHICH IS ERRONEOUS MAY BE CORRECTED BY THE DIRECTOR OF THE VETERANS' BUREAU. AS FOLLOWS: I HAVE THE HONOR TO REFER TO YOUR DECISION OF AUGUST 3. IN WHICH THERE WAS CONSIDERED THE AUTHORITY OF THE BUREAU TO PAY TRAVELING EXPENSES INCIDENT TO NECESSARY EXAMINATIONS OF CLAIMANTS FOR BENEFITS UNDER PUBLIC 506. IN DECIDING THAT THE APPROPRIATIONS FOR THE VETERANS' BUREAU ARE AVAILABLE FOR EXPENSES INCURRED INCIDENT TO NECESSARY EXAMINATIONS FOR APPLICANTS UNDER THIS LEGISLATION TO THE SAME EXTENT AND FOR THE SAME PURPOSES AS OTHER BENEFICIARIES OF THE BUREAU. YOU HELD FURTHER: "IT IS APPARENT THE INTENT OF THE ACT IS THAT ONLY THOSE WHO HAVE A PERMANENT DISABILITY ENTITLING THEM TO A RATING OF 30 PERCENT OR MORE UNDER THE SCHEDULE OF RATINGS ARE ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 24.

A-25380, FEBRUARY 4, 1929, 8 COMP. GEN. 401

VETERANS' BUREAU - RETIREMENT OF EMERGENCY OFFICERS TO ENTITLE TO RETIREMENT UNDER THE ACT OF MAY 24, 1928, 45 STAT. 735, THERE MUST BE A RATING OF PERMANENT PHYSICAL DISABILITY OF 30 PERCENT, OR MORE, IN ACCORDANCE WITH LAW UNDER THE WORLD WAR VETERANS' ACT OF JUNE 7, 1924, 43 STAT. 607, AND THE SCHEDULE OF RATINGS APPLIED PURSUANT THERETO AS IN EFFECT MAY 24, 1928; A RATING OF 30 PERCENT, OR MORE, PERMANENT DISABILITY BASED ON RATING SCHEDULES IN EFFECT UNDER EARLIER LAWS THAN THE ACT OF JUNE 7, 1924, DOES NOT NECESSARILY ENTITLE TO RETIREMENT; AND A RATING WHICH IS ERRONEOUS MAY BE CORRECTED BY THE DIRECTOR OF THE VETERANS' BUREAU.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, FEBRUARY 4, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 10, 1928, AS FOLLOWS:

I HAVE THE HONOR TO REFER TO YOUR DECISION OF AUGUST 3, 1928, IN RESPONSE TO MY LETTER OF JULY 26, 1928, IN WHICH THERE WAS CONSIDERED THE AUTHORITY OF THE BUREAU TO PAY TRAVELING EXPENSES INCIDENT TO NECESSARY EXAMINATIONS OF CLAIMANTS FOR BENEFITS UNDER PUBLIC 506, 70TH CONGRESS, "AN ACT MAKING ELIGIBLE FOR RETIREMENT UNDER CERTAIN CONDITIONS OFFICERS AND FORMER OFFICERS OF THE ARMY, NAVY, AND MARINE CORPS OF THE UNITED STATES, OTHER THAN OFFICERS OF THE REGULAR ARMY, NAVY, OR MARINE CORPS, WHO INCURRED PHYSICAL DISABILITY IN LINE OF DUTY WHILE IN SERVICE OF THE UNITED STATES DURING THE WORLD WAR.'

IN DECIDING THAT THE APPROPRIATIONS FOR THE VETERANS' BUREAU ARE AVAILABLE FOR EXPENSES INCURRED INCIDENT TO NECESSARY EXAMINATIONS FOR APPLICANTS UNDER THIS LEGISLATION TO THE SAME EXTENT AND FOR THE SAME PURPOSES AS OTHER BENEFICIARIES OF THE BUREAU, YOU HELD FURTHER:

"IT IS APPARENT THE INTENT OF THE ACT IS THAT ONLY THOSE WHO HAVE A PERMANENT DISABILITY ENTITLING THEM TO A RATING OF 30 PERCENT OR MORE UNDER THE SCHEDULE OF RATINGS ARE ENTITLED TO RETIREMENT UNDER THE ACT OF MAY 24, 1928, AND IF IN ANY CASE THE DESCRIPTION OF THE DISABILITY UPON WHICH AN AWARD HAS BEEN MADE BY THE VETERANS' BUREAU SUGGESTS THAT THE DISABILITY MAY NOW BE LESS THAN 30 PERCENT, IT IS COMPETENT FOR THE DIRECTOR, IN HIS DISCRETION, TO REQUIRE THE MEDICAL EXAMINATION PROVIDED BY THE WORLD WAR VETERANS' ACT IN ORDER THAT THE RATING ACCORDED MAY BE "IN ACCORDANCE WITH LAW.'"

PRIOR TO THE RECEIPT OF THIS DECISION THE LANGUAGE LIMITING THE BENEFITS OF THIS ACT TO THOSE ,WHO HAVE BEEN, OR MAY HEREAFTER, WITHIN ONE YEAR, BE, RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE," HAD BEEN CONSTRUED BY THE GENERAL COUNSEL AS FOLLOWS:

"INASMUCH AS THE PRESENT ACT (LINES 7 AND 8, PAGE 1) CONTAINS THE PHRASE "WHO HAVE BEEN OR MAY HEREAFTER," IT IS BELIEVED THAT WHERE AN OFFICER HAS A DISABILITY IN LINE OF DUTY RESULTING DIRECTLY FROM HIS MILITARY SERVICE ON ACCOUNT OF WHICH HE RECEIVED A THIRTY PERCENTUM PERMANENT PARTIAL DISABILITY RATING PRIOR TO THE PASSAGE OF THE ACT, HE WOULD BE ENTITLED TO APPROPRIATE BENEFITS OF THE ACT, EVEN THOUGH SINCE THE PASSAGE OF THE ACT HE HAS BEEN RATED LESS THAN TEN PERCENT PERMANENTLY DISABLED.'

A DIVERSION OF OPINION, HOWEVER, EXISTED IN THE BUREAU ON THIS MATTER AND THE PROCEDURE ESTABLISHED WAS BASED UPON THE THEORY THAT THE INTENTION OF THE LEGISLATION IS THAT A PREVIOUS RATING OF 30 PERCENT PERMANENT, WHICH WAS LATER REDUCED TO LESS THAN 30 PERCENT PERMANENT, SHOULD BE CONSIDERED AS AN ERRONEOUS RATING AND, THEREFORE, NOT ONE WHICH WOULD ENTITLE AN OFFICER TO THE BENEFITS PROVIDED. YOUR DECISION OF AUGUST 3, 1928, HAS BEEN REGARDED AS CONFIRMING THIS CONSTRUCTION, AND THE BUREAU HAS CONTINUED TO ACT ON THE THEORY THAT A PERMANENT DISABILITY OF NOT LESS THAN 30 PERCENT MUST EXIST NOW, OR WITHIN ONE YEAR AFTER THE ENACTMENT OF THE LEGISLATION, BEFORE AN EX OFFICER MAY BE EXTENDED THE BENEFITS OF RETIREMENT PAY THEREUNDER, AND THAT IN ORDER TO DETERMINE THE PRESENT EXISTENCE OF SUCH 30 PERCENT PERMANENT DISABILITY REEXAMINATION WOULD BE NECESSARY EXCEPT IN THE FOLLOWING CASES:

(1) WHENEVER THE OFFICER WHOSE COMPENSABLE DISABILITY, DIRECTLY CONNECTED WITH SERVICE AND INCURRED IN LINE OF DUTY, RESULTS FROM AMPUTATION, ENUCLEATION, ORGANIC BLINDNESS, ORGANIC DEAFNESS, ORGANIC LOSS OF SPEECH, FRACTURES, SCARS, PERIPHERAL OR CRANIAL NERVE INJURIES, DISFIGUREMENTS, OR ANKYLOSES.

(2) WHENEVER THE OFFICER HAS HAD A COMPLETE PHYSICAL EXAMINATION BY A BOARD OF THREE PHYSICIANS (AS REQUIRED FOR PERMANENT RATINGS UNDER THE REGULATIONS GOVERNING THE VETERANS' BUREAU) WITHIN A PERIOD OF NINETY DAYS.

IT IS MY BELIEF THAT THIS IS A REASONABLE INTERPRETATION OF THE PROVISIONS OF THE LAW AND THAT YOUR DECISION OF AUGUST 3, 1928, IS IN SUBSTANTIAL AGREEMENT THEREWITH.

IN VIEW, HOWEVER, OF THE FACT THAT YOUR DECISION OF AUGUST 3, 1928, WAS PRIMARILY DIRECTED AT ANOTHER PHASE OF THIS MATTER, RECONSIDERATION IS REQUESTED WITH PARTICULAR REFERENCE TO THE FOLLOWING QUESTIONS:

(1) IN A CASE WHERE AN OFFICER HAS HERETOFORE BEEN RATED 30 PERCENT PERMANENTLY DISABLED FOR DISABILITY INCURRED IN LINE OF DUTY DIRECTLY RESULTING FROM WAR SERVICE, AND THE FILE NOW SHOWS THAT THE RATING WAS IN ERROR UNDER THE LAW OR THE FACTS, OR BOTH, MAY THE BUREAU REEXAMINE AND RERATE THE APPLICANT?

(2) WHERE AN OFFICER HAS HERETOFORE BEEN RATED 30 PERCENT OR MORE PERMANENTLY DISABLED FOR A DISABILITY INCURRED IN LINE OF DUTY DIRECTLY RESULTING FROM WAR SERVICE AND SUCH RATING WAS CORRECT UNDER THE LAW AND THE SCHEDULE OF DISABILITY RATINGS IN EFFECT AT THAT TIME, BUT SUCH RATING WOULD NOT BE THE SAME UNDER THE SCHEDULE OF DISABILITY RATINGS IN EFFECT AT THE PRESENT TIME, IS THERE AUTHORITY TO PLACE THE MAN ON THE RETIREMENT LIST ON THE STRENGTH OF THE FORMER RATING, OR MUST A RERATING BE MADE UNDER THE PRESENT DISABILITY RATING SCHEDULE?

IN THIS CONNECTION CONSIDERATION SHOULD BE GIVEN TO THE CHANGE IN THE LAW GOVERNING THE PRINCIPLES OF DISABILITY RATINGS EFFECTED BY THE ACT OF JUNE 7, 1924, WHICH INTRODUCED THE PRINCIPLE OF RATINGS BASED ON IMPAIRMENT IN EARNING CAPACITY IN OCCUPATIONS SIMILAR TO THE OCCUPATION AT TIME OF ENLISTMENT, AND TO THE FACT THAT THE FORMAL RATING SCHEDULE THEREUNDER WAS NOT PUT IN EFFECT UNTIL JANUARY 1, 1926, THE SCHEDULE IN EFFECT PRIOR TO JUNE 7, 1924, BEING USED IN THE INTERIM IN CONJUNCTION WITH INSTRUCTIONS TO THE RATING AUTHORITIES TO APPLY THE OLD SCHEDULE IN THE LIGHT OF THE LAW ITSELF PENDING THE PROMULGATION OF THE NEW SCHEDULE. SINCE JANUARY 1, 1926, THERE HAVE ALSO BEEN PROMULGATED SEVERAL EXTENSIONS TO THAT SCHEDULE OF DISABILITY RATINGS WHICH HAVE CAUSED DISTINCT VARIATIONS IN RATINGS OF INDIVIDUAL CASES ON THE IDENTICAL DISABILITY; FOR EXAMPLE, DUE TO A REVISION IN THE OCCUPATIONAL VARIANTS FOR STUDENTS, A MAN WHO HAS HERETOFORE BEEN ASSIGNED A VARIANT AS A STUDENT BECAUSE HE WAS ENGAGED IN THE STUDY OF LAW AT THE TIME OF HIS ENTRANCE INTO THE MILITARY SERVICE IS NOW UNDER EXTENSION NO. 5, DATED JUNE 29, 1928, ASSIGNED A VARIANT AS A LAWYER, THE USE OF WHICH IN THE EVALUATION OF SOME DISABILITIES WILL BRING THE DEGREE OF RATING FOR EXACTLY THE SAME DISABILITY BELOW 30 PERCENT. THE BUREAU AUTHORIZED TO TAKE THE RATING IN EFFECT AT THE TIME OF THE ENACTMENT OF THE LAW WHICH WOULD BRING HIM WITHIN THE TERMS OF THE LEGISLATION, OR MUST THE AMENDED SCHEDULE BE APPLIED? CONVERSELY, WHERE A CHANGE IN OCCUPATIONAL VARIANT OR OTHER RATING ELEMENT SUBSEQUENT TO THE ENACTMENT OF THE LAW WOULD BRING THE SAME DISABILITY TO A RATING OF MORE THAN 30 PERCENT PERMANENT IS THE BUREAU AUTHORIZED OR REQUIRED TO RERATE THE APPLICANT UNDER THE AMENDED SCHEDULE SO AS TO BRING HIS RATING UP TO 30 PERCENT AND GIVE HIM THE BENEFITS OF THE RETIREMENT LAW?

(3) IN A CASE WHERE AN OFFICER HAS BEEN RATED 30 PERCENT OR MORE PERMANENTLY DISABLED UNDER THE LAWS, REGULATIONS, AND SCHEDULES OF DISABILITY RATINGS IN EFFECT AT THE TIME THE RATING WAS MADE FOR A DISABILITY INCURRED IN LINE OF DUTY DIRECTLY RESULTING FROM WAR SERVICE, BUT THE EVIDENCE NOW SHOWS THAT HE IS NOT AT THE PRESENT TIME PERMANENTLY DISABLED TO A DEGREE OF 30 PERCENT OR MORE, MUST THE OLDRATING BE ACCEPTED AND THE BENEFITS OF THE RETIREMENT ACT BE ACCORDED? OR, SHOULD HE BE REEXAMINED AND RERATED UNDER THE LAW AND SCHEDULE OF DISABILITY RATINGS IN EFFECT ON MAY 29, 1928, OR THAT IN EFFECT ON THE DATE OF ADMINISTRATIVE DETERMINATION? (SEE DECISIONS OF YOUR OFFICE IN THE CASE OF EDWARD L. MARTHILL, C-405,236, DATED OCTOBER 2, 1926, AND JANUARY 7, 1927.)

IN THE DECISION TO WHICH REFERENCE IS MADE, THE QUESTION FOR CONSIDERATION WAS WHETHER THE APPROPRIATIONS FOR THE VETERANS' BUREAU AVAILABLE FOR TRAVEL EXPENSES OF CLAIMANTS FOR THE BENEFITS ACCRUING UNDER THE WORLD WAR VETERANS' ACT MIGHT BE USED TO PAY TRANSPORTATION AND TRAVEL EXPENSES OF APPLICANTS FOR RETIREMENT TO SECURE PHYSICAL EXAMINATION. REACHING THE CONCLUSION THAT THE APPROPRIATIONS WERE AVAILABLE FOR PAYMENT OF TRANSPORTATION AND TRAVEL EXPENSES FOR APPLICANTS FOR RETIREMENT UNDER THE ACT OF MAY 24, 1928, IT WAS NECESSARY TO CONCLUDE THAT A PHYSICAL EXAMINATION IN SOME CASES WAS NECESSARY, AND THAT THE MERE FACT THAT THE RECORDS OF THE VETERANS' BUREAU SHOWED THAT AT SOME TIME IN THE PAST A RATING OF 30 PERCENT OR MORE DISABILITY HAD BEEN GIVEN A FORMER OFFICER, BUT UPON SUBSEQUENT EXAMINATION A LESS DEGREE OF OR NO DISABILITY WAS FOUND AND THE RECORD HAD BEEN CORRECTED TO SHOW THE TRUE FACTS, WOULD NOT ENTITLE THE OFFICER TO RETIREMENT. EXTENDED DISCUSSION AS TO THE BASIS FOR REACHING SUCH A CONCLUSION WAS NOT DEEMED NECESSARY AS THAT CONCLUSION WAS IN CONSONANCE WITH THE CONCLUSION REACHED BY YOU, AND THAT WAS THE REASON FOR THE SUBMISSION.

IF THE STRICT LITERAL LANGUAGE OF THE QUOTED PHRASE WERE THE ONLY GUIDE AS TO THE DESCRIPTION OF THE BENEFICIARIES IT MIGHT INCLUDE ANYONE WHO, WHETHER BY MISTAKE, OR OTHERWISE, HAD EVER RECEIVED A RATING OF PHYSICAL DISABILITY OF 30 PERCENT OR MORE, IN THE VETERANS' BUREAU UNDER EITHER, OR ANY, OF THE SCHEDULES OF RATINGS EVER EMPLOYED BY THE BUREAU, AND WHO SUBSEQUENTLY, UNDER THE AUTHORITY OF THE VETERANS' BUREAU TO REEXAMINE BENEFICIARIES, HAD BEEN LATER CORRECTLY RATED WITH A LESS DEGREE OF DISABILITY, OR WITH NO DISABILITY, MIGHT NOW BE REQUIRED TO BE PLACED ON THE RETIRED LIST CREATED BY THE ACT OF MAY 24, 1928, TO RECEIVE RETIRED PAY FOR LIFE. IN SUCH CIRCUMSTANCES THERE MIGHT BE ONE OR MANY, WITH NO PRESENT DISABILITY, AWARDED RETIRED PAY FOR LIFE, WHILE ONE OR MANY WITH PERMANENT DISABILITY RATED AT 29 PERCENT, WOULD NECESSARILY BE DENIED ANY RETIRED PAY. IN MANY CASES IT IS UNDERSTOOD NO BENEFITS ARE NOW BEING PAID PERSONS WHO SOON AFTER THE WAR HAD RATINGS EQUAL TO, OR IN EXCESS OF, 30 PERCENT DISABILITY, SO THAT THE RETIRED PAY TO BE PAID THEM UNDER THE ACT OF 1928 WOULD NOT IN FACT "BE IN LIEU OF" ANY DISABILITY COMPENSATION THEY ARE NOW RECEIVING. THE ACT EXTENDS ITS BENEFITS TO THE FORMER OFFICERS THEREIN DESCRIBED---

* * * WHO DURING SUCH SERVICE HAVE INCURRED PHYSICAL DISABILITY IN LINE OF DUTY, AND WHO HAVE BEEN, OR MAY HEREAFTER, WITHIN ONE YEAR, BE RATED IN ACCORDANCE WITH LAW AT NOT LESS THAN 30 PERCENTUM PERMANENT DISABILITY BY THE UNITED STATES VETERANS' BUREAU FOR DISABILITY RESULTING DIRECTLY FROM SUCH WAR SERVICE: * * *.

AND IN ADDITION TO OTHER BENEFITS PROVIDES THAT FORMER OFFICERS SO PLACED ON THE RETIRED LIST THEREIN CREATED---

* * * SHALL RECEIVE FROM DATE OF RECEIPT OF THEIR APPLICATION RETIRED PAY AT THE RATE OF 75 PERCENTUM OF THE PAY TO WHICH THEY WERE ENTITLED, AT THE TIME OF THEIR DISCHARGE FROM THEIR COMMISSIONED SERVICE, EXCEPT PAY UNDER THE ACT OF MAY 18, 1920: PROVIDED, THAT ALL PAY AND ALLOWANCES TO WHICH SUCH PERSONS OR OFFICERS MAY BE ENTITLED UNDER THE PROVISIONS OF THIS LAW * * * SHALL BE IN LIEU OF ALL DISABILITY COMPENSATION BENEFITS TO SUCH OFFICERS OR PERSONS PROVIDED IN THE WORLD WAR VETERANS' ACT, 1924, AND AMENDMENTS THERETO, EXCEPT AS OTHERWISE AUTHORIZED HEREIN, AND EXCEPT AS PROVIDED BY THE ACT OF DECEMBER 18, 1922: * * *.

SECTION 302 OF THE WAR RISK INSURANCE ACT OF OCTOBER 6, 1917, 40 STAT. 406, PROVIDED A SCHEDULE OF PAYMENTS FOR TOTAL DISABILITY AND FOR A PERCENTAGE OF SUCH PAYMENTS IF THE DISABILITY IS PARTIAL AND REQUIRED THAT A SCHEDULE OF RATINGS OF REDUCED EARNING CAPACITY FROM SPECIFIED INJURIES OR COMBINATIONS OF INJURIES OF A PERMANENT NATURE SHOULD BE ADOPTED AND APPLIED BY THE BUREAU. BY SECTION 305 IT WAS PROVIDED:

THAT UPON ITS OWN MOTION OR UPON APPLICATION THE BUREAU MAY AT ANY TIME REVIEW AN AWARD, AND, IN ACCORDANCE WITH THE FACTS FOUND UPON SUCH REVIEW, MAY END, DIMINISH, OR INCREASE THE COMPENSATION PREVIOUSLY AWARDED, OR, IF COMPENSATION HAS BEEN REFUSED OR DISCONTINUED, MAY AWARD COMPENSATION.

THAT PROVISION HAS BEEN CONTINUOUSLY IN THE LAW, ALTHOUGH AMENDED FROM TIME TO TIME, THE PRESENT PROVISION FOR REVIEWING AN AWARD BEING CONTAINED IN SECTION 205 OF THE WORLD WAR VETERANS' ACT, 43 STAT. 622, WHICH WAS QUOTED AT LENGTH IN DECISION A-23876, AUGUST 3, 1928, REFERRED TO BY YOU. THIS PROVISION CLEARLY ASSUMES NOT ONLY THAT AWARDS MAY HAVE BEEN MADE OF PERMANENT PARTIAL DISABILITY WHICH TIME HAS SHOWN WAS EITHER TEMPORARY OR SUSCEPTIBLE OF IMPROVEMENT, BUT ALSO THAT AWARDS MIGHT BE IMPROVIDENTLY MADE, OR MADE AS THE RESULT OF UNDETECTED MALINGERY. IN ANY SUCH CASE WHERE A RATING WAS INCORRECTLY ACCORDED THE FORMER OFFICER OF 30 PERCENT, OR MORE, PERMANENT DISABILITY, IT IS COMPETENT FOR THE DIRECTOR TO REVIEW THE AWARD AND ACCORD A RATING WHICH WILL CORRECTLY SHOW THE PRESENT CONDITION OF THE BENEFICIARY. AS TO THE BENEFICIARIES INTENDED BY THE ACT OF MAY 24, 1928, SEE SENATE REPORT 115, SEVENTIETH CONGRESS, FIRST SESSION, TO ACCOMPANY SENATE BILL 777, WHICH BECAME THE ACT OF MAY 24, 1928, WHERE THE COMMITTEE MADE THE FOLLOWING STATEMENTS AS TO THE PURPOSE AND EFFECT OF THE BILL:

THE BILL PROVIDES RETIREMENT PAY OF 75 PERCENT OF THE COMPENSATION PAID AT TIME OF DISCHARGE FROM ACTIVE SERVICE TO EMERGENCY ARMY OFFICERS WHO INCURRED PERMANENT DISABILITY OF 30 PERCENT OR MORE AS A RESULT OF THEIR SERVICE DURING THE WORLD WAR.

IT IS BELIEVED THAT THIS DEGREE OF DISABILITY IN THE KEEN COMPETITION OF CIVIL LIFE, IS ON THE AVERAGE, THE EQUIVALENT OF THE "INCAPACITATED FOR ACTIVE SERVICE," WHICH IS THE BASIS OF RETIRING OFFICERS FROM THE REGULAR ESTABLISHMENTS ON ACCOUNT OF DISABILITY.

THE NUMBER OF DISABLED EMERGENCY ARMY OFFICERS TO BE BENEFITED BY THIS PROPOSED ACT, TOGETHER WITH ITS COSTS, ARE SHOWN IN THE APPENDED LETTER AND TABLE FROM THE DIRECTOR OF THE VETERANS' BUREAU, DATED JANUARY 19, 1928, WHICH ARE MADE A PART OF THIS REPORT.

IN HOUSE REPORT 1082, SEVENTIETH CONGRESS, FIRST SESSION, TO ACCOMPANY SENATE BILL 777, THE FOLLOWING STATEMENT IS FOUND:

YOUR COMMITTEE POINTS OUT THAT THE SENATE ACT (S. 777) INCLUDES THOSE DISABLED EMERGENCY OFFICERS OF THE NAVY AND MARINE CORPS, 201 IN NUMBER, WHO DID NOT OBTAIN RETIREMENT UNDER THE ACT OF JUNE 4, 1920. THE INCREASED ANNUAL COST UNDER THIS AMENDMENT WILL BE $117,624.

IN ALL OTHER RESPECTS THE TEXT OF S. 777 IS SIMILAR TO THAT OF H.R. 500 WHICH WAS FAVORABLY REPORTED BY THIS COMMITTEE ON JANUARY 20, 1928, PERFECTED COPY OF WHICH REPORT FOLLOWS AND IS MADE A PART OF THIS REPORT:

THE BILL PROVIDES RETIREMENT PAY OF 75 PERCENT OF THE COMPENSATION PAID AT TIME OF DISCHARGE FROM ACTIVE SERVICE TO EMERGENCY ARMY OFFICERS WHO INCURRED PERMANENT DISABILITY OF 30 PERCENT OR MORE AS A RESULT OF THEIR SERVICE DURING THE WORLD WAR. * * *.

THE NUMBER OF DISABLED EMERGENCY OFFICERS TO BE BENEFITED BY THIS PROPOSED ACT IS ESTIMATED BY THE DIRECTOR OF THE UNITED STATES VETERANS' BUREAU, UNDER DATE OF MARCH 21, 1928, TO BE 3,251. THIS INCREASE OVER PREVIOUS ESTIMATES IS IN PART DUE TO THE OPERATION OF THE NEW RATING SCHEDULE RECOMMENDED BY THIS COMMITTEE AND AUTHORIZED BY THE SIXTY-EIGHTH CONGRESS, IN PART DUE TO THE FACT THAT THE PHYSICAL CONDITION OF THESE OLDER DISABLED OFFICERS HAS BEEN GRADUALLY BREAKING DOWN UNDER THE HANDICAPS OF THEIR WAR-INCURRED DISABILITIES, AND IN PART DUE TO THE INCLUSION OF 185 NAVAL OFFICERS AND 16 MARINE CORPS OFFICERS NOT ALREADY RETIRED.

THE INCREASED ANNUAL COST TO THE GOVERNMENT, BASED UPON THE FIGURES OF THE UNITED STATES VETERANS' BUREAU, IS $2,294,265, BEING THE DIFFERENCE BETWEEN THE AMOUNT TO BE PAID UNDER THIS BILL, $5,136,225, AND IN LIEU OF THE AMOUNT THE 3,251 ARE NOW RECEIVING AS COMPENSATION $2,841,960. THE DEATH RATE OF THESE MEN DISABLED IN WAR IS HIGH, MORE THAN 125 DEATHS HAVING OCCURRED DURING THE YEAR 1927. THEREFORE, IT IS OBVIOUS THAT WHEN THIS ACT BECOMES OPERATIVE ITS COST SHOULD DIMINISH RAPIDLY.

TO RELIEVE THE WAR DEPARTMENT OF THE, TO WIT, OBJECTIONABLE NECESSITY OF DISBURSING FROM ITS FUNDS MONEY NOT APPLICABLE TO STRICTLY MILITARY PURPOSES, THE BILL PROVIDES THAT THE ADMINISTRATION OF THE ACT BE COMMITTED TO THE UNITED STATES VETERANS' BUREAU, WHICH HAS THE COMPLETE MEDICAL RECORDS OF THE BENEFICIARIES. * * *.

ALL DISCUSSION WAS ON THE BASIS OF FORMER OFFICERS WHO WERE PERMANENTLY DISABLED AS THE BENEFICIARIES OF THE ACT; IN OTHER WORDS, FORMER OFFICERS WHO UNDER THE WORLD WAR VETERANS' ACT (INCLUDING THE AUTHORITY OF THE VETERANS' BUREAU TO REVIEW AN AWARD UNDER THE STATUTORY PROVISIONS CITED ABOVE), WERE PERMANENTLY DISABLED TO AN EXTENT OF 30 PERCENT OR MORE AND WHO WERE OTHERWISE WITHIN THE ACT.

THE LANGUAGE CITED DEFINES AND LIMITS THE BENEFICIARIES UNDER THE ACT, WITH THE FURTHER QUALIFICATION THAT THE DISABILITY SHALL HAVE BEEN, OR SHALL BE, RATED BY THE DIRECTOR OF THE VETERANS' BUREAU AT 30 PERCENT, OR MORE, IN ACCORDANCE WITH LAW, I.E., IN ACCORDANCE WITH THE SCHEDULE OF RATINGS IN EFFECT ON THE DATE OF THE ACT FOR AWARDING COMPENSATION UNDER THE WORLD WAR VETERANS' ACT, AND IT IS THUS CLEAR THAT THE MERE RATING AT A PARTICULAR PERCENTAGE OF DISABILITY UNDER ANY SCHEME OF RATING AT ANY TIME IN EFFECT WAS NOT DESIGNED TO BE THE TEST OF THE RIGHT TO RETIREMENT UNDER THE ACT OF MAY 24, 1928. UNTIL THE REQUISITES FOR RETIREMENT UNDER THE ACT HAVE BEEN ESTABLISHED IN A PARTICULAR CASE, THE APPLICANT FOR RETIREMENT CONTINUES TO BE A BENEFICIARY, OR AN APPLICANT FOR BENEFITS, UNDER THE WORLD WAR VETERANS' ACT; THE ACT OF MAY 24, 1928, DOES NOT SUSPEND THE APPLICATION OF THE WORLD WAR VETERANS' ACT AS TO PERSONS PRIMA FACIE COMING WITHIN THE TERMS OF THE RETIREMENT ACT; UNTIL THE PERSON HAS BEEN RETIRED UNDER THE TERMS OF THE ACT, HE CONTINUES TO BE SUBJECT TO THE PROVISIONS OF THE WORLD WAR VETERANS' ACT, INCLUDING THE PROVISION OF LAW AUTHORIZING THE BUREAU TO REEXAMINE AND RERATE BENEFICIARIES OF THE WORLD WAR VETERANS' ACT.

ON THE FOREGOING PREMISE YOUR SEVERAL QUESTIONS WILL BE ANSWERED IN THEIR ORDER, THE ANSWERS IN EACH CASE BEING PREDICATED ON THE ASSUMPTION THAT THE DIRECTOR OF THE VETERANS' BUREAU, IN THE EXERCISE OF HIS DISCRETION, AND ON THE EVIDENCE AVAILABLE TO HIM, HAS DETERMINED IN A GIVEN CASE THAT THE PRESENT RECORDS SUFFICIENTLY SUGGEST ERROR TO WARRANT A REEXAMINATION.

1. YES.

2. THE SECOND PARAGRAPH OF SUBDIVISION (4) OF SECTION 202 OF THE WORLD WAR VETERANS' ACT, 43 STAT. 618, PROVIDES:

A SCHEDULE OF RATINGS OF REDUCTIONS IN EARNING CAPACITY FROM INJURIES OR COMBINATIONS OF INJURIES SHALL BE ADOPTED AND APPLIED BY THE BUREAU. RATINGS MAY BE AS HIGH AS 100 PERCENTUM. THE RATINGS SHALL BE BASED, AS AS FAR AS PRACTICABLE, UPON THE AVERAGE IMPAIRMENTS OF EARNING CAPACITY RESULTING FROM SUCH INJURIES IN CIVIL OCCUPATIONS SIMILAR TO THE OCCUPATION OF THE INJURED MAN AT THE TIME OF ENLISTMENT AND NOT UPON THE IMPAIRMENT IN EARNING CAPACITY IN EACH INDIVIDUAL CASE, SO THAT THERE SHALL BE NO REDUCTION IN THE RATE OF COMPENSATION FOR INDIVIDUAL SUCCESS IN OVERCOMING THE HANDICAP OF AN INJURY. THE BUREAU IN ADOPTING THE SCHEDULE OF RATINGS OF REDUCTION IN EARNING CAPACITY SHALL CONSIDER THE IMPAIRMENT IN ABILITY TO SECURE EMPLOYMENT WHICH RESULTS FROM SUCH INJURIES. THE BUREAU SHALL FROM TIME TO TIME READJUST THIS SCHEDULE OF RATINGS WHENEVER ACTUAL EXPERIENCE SHALL SHOW THAT IT IS UNJUST TO THE DISABLED VETERAN.

THE RATING MUST BE IN ACCORDANCE WITH LAW, AND THE LAW IN EFFECT MAY 24, 1928, IS THE LAW CONTEMPLATED BY THE ACT BY WHICH IS TO BE TESTED THE QUESTION WHETHER THE RATING IS IN ACCORDANCE WITH LAW. ON THE FACTS SUGGESTED A RERATING SHOULD BE MADE UNDER THE DISABILITY RATING SCHEDULE IN EFFECT MAY 24, 1928. IN THE MATTER OF RETIREMENT, EQUALITY OF TREATMENT FOR THE SAME DISABILITY, OTHER REQUISITES BEING ESTABLISHED, REQUIRES THAT ALL CLAIMS BE RATED UNDER THE SAME SCHEDULE, THE ONE IN EFFECT MAY 24, 1928, PURSUANT TO LAW; OTHERWISE SOME FORMER OFFICERS WOULD BE RETIRED AND OTHERS HAVING IDENTICAL DISABILITIES, WOULD NOT BE RETIRED. THE LAW CONTEMPLATES EQUAL TREATMENT FOR ALL OTHERWISE WITHIN THE LAW HAVING THE SAME DEGREE OF DISABILITY UNDER THE APPLICABLE RATING SCHEDULE.

3. IT IS ASSUMED THAT THE DATE "MAY 29, 1928," WAS INADVERTENT AND THAT MAY 24, 1928, THE DATE THE ACT PROVIDING FOR RETIREMENT OF DISABLED EMERGENCY OFFICERS BECAME EFFECTIVE WAS INTENDED, AND ANSWER WILL BE ON THAT BASIS. ALL BENEFICIARIES OF THE VETERANS' BUREAU WERE REQUIRED BY SECTION 202 (4) OF THE ACT OF JUNE 7, 1924, TO BE RATED ON THE SCHEDULE OF RATINGS THEREIN DIRECTED TO BE ADOPTED. SECTION 202 (4) OF THE ACT OF JUNE 7, 1924, DIRECTS THAT "A SCHEDULE OF RATINGS OF REDUCTIONS IN EARNING CAPACITY FROM INJURIES OR COMBINATIONS OF INJURIES SHALL BE ADOPTED AND APPLIED BY THE BUREAU.' IT WILL BE OBSERVED THAT THE ENACTMENT REQUIRES NOT ONLY THE ADOPTION OF SCHEDULE OF RATINGS, BUT ALSO THEIR APPLICATION, I. E., THAT THE SCHEDULE SHALL BE PUT INTO EFFECT, AND IF TO PUT SUCH SCHEDULE INTO EFFECT REQUIRED EXAMINATION, THE RATING WOULD NOT BE IN ACCORDANCE WITH LAW UNTIL SUCH EXAMINATION HAD BEEN HAD. IT IS UNDERSTOOD THAT HAS BEEN THE ADMINISTRATIVE PROCEDURE AND THE LAW WAS BEING SO ADMINISTERED WHEN THE ACT OF MAY 24, 1928, WAS PASSED. THE OLD RATINGS WERE NOT, THEREFORE, FOR THE PURPOSE OF THE RETIREMENT ACT, "IN ACCORDANCE WITH LAW" AND IN ANY CASE WHERE THE DESCRIPTION OF THE INJURY OR DISABILITY, OR OTHER EVIDENCE AVAILABLE TO THE BUREAU, SUGGESTS THAT THE APPLICATION OF THE NEW SCHEDULE OF RATINGS MAY AFFECT THE PERCENTAGE OF DISABILITY, A MATTER FOR THE EXCLUSIVE DETERMINATION OF THE DIRECTOR OF THE VETERANS' BUREAU, THE RATING IS NOT IN ACCORDANCE WITH LAW, A RERATING IS REQUIRED AND THE SCHEDULE OF RATINGS IN EFFECT MAY 24, 1928, SHOULD BE FOLLOWED. THE DECISIONS CITED RELATE TO THE EFFECTIVE DATE OF AN INCREASE IN COMPENSATION RESULTING FROM A RERATING UNDER THE SCHEDULE OF RATINGS PUT INTO EFFECT UNDER THE ACT OF JUNE 7, 1924. IN A DEGREE THE STATUS OF THE BENEFICIARIES OF THE ACT OF MAY 24, 1928, IS CHANGED. THEIR RIGHT TO COMPENSATION UNDER THE WORLD WAR VETERANS' ACT CEASES AFTER RETIREMENT AND FROM THE DATE OF RECEIPT OF THEIR APPLICATION FOR RETIREMENT IN THE BUREAU THEY ARE TO BE PLACED ON THE RETIRED LIST THEREIN CREATED AND ARE ENTITLED TO RETIRED PAY BASED ON THEIR COMMISSIONED RANK AT DATE OF DISCHARGE FROM THEIR WAR SERVICE. THE PERCENTAGE OF DISABILITY SHOULD BE DETERMINED UNDER THE SCHEDULE IN EFFECT ON THE DATE OF THE ACT THAT ALL IN THE SAME SITUATION SHOULD BE TREATED WITH EXACT EQUALITY. FOR THE PURPOSE OF RETIREMENT, THE RATING IS REQUIRED TO BE IN ACCORDANCE WITH THE LAW AS OF THAT DATE.

WHAT IS HERE SAID, OF COURSE, HAS NO APPLICATION TO THE DECISIONS CITED BY YOU IN THIS CONNECTION.