A-28943, OCTOBER 28, 1929, 9 COMP. GEN. 173

A-28943: Oct 28, 1929

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WHO WAS NOT IN THE SERVICE ON THAT DATE. IS NOT ENTITLED TO DISABILITY COMPENSATION UNDER THE PROVISIONS OF THE WAR RISK INSURANCE ACT OR THE WORLD WAR VETERANS' ACT. 2 COMP. HE WAS TREATED FOR THIS CONDITION AND WAS REPORTED AS CONVALESCENT WHEN THE DIAGNOSIS WAS CHANGED TO PSYCHONEUROSIS AS RESULT OF THE INJURY. HE WAS HONORABLY DISCHARGED FROM THE ARMY ON SURGEON'S CERTIFICATE OF DISABILITY BECAUSE OF TRAUMATIC PSYCHONEUROSIS. WAS HONORABLY DISCHARGED THEREFROM ON SURGEON'S CERTIFICATE OF DISABILITY BECAUSE OF CONSTITUTIONAL PSYCHOPATHIC STATE. THE BUREAU HAS HELD THAT THE DISABILITY FOR WHICH THE CLAIMANT WAS DISCHARGED ON SEPTEMBER 21. WAS THE SAME DISABILITY FOR WHICH HE WAS DISCHARGED ON SEPTEMBER 3.

A-28943, OCTOBER 28, 1929, 9 COMP. GEN. 173

VETERANS' BUREAU - DISABILITY COMPENSATION A VETERAN WHO HAD SUSTAINED AN INJURY OR DISABILITY IN THE MILITARY SERVICE PRIOR TO APRIL 6, 1917, BUT WHO WAS NOT IN THE SERVICE ON THAT DATE, AND WHO SUSTAINED NO ADDITIONAL INJURY OR DISABILITY OR AGGRAVATION OF A PRIOR INJURY OR DISABILITY DURING SUBSEQUENT SERVICE IN THE WORLD WAR, IS NOT ENTITLED TO DISABILITY COMPENSATION UNDER THE PROVISIONS OF THE WAR RISK INSURANCE ACT OR THE WORLD WAR VETERANS' ACT. 2 COMP. GEN. 643 DISTINGUISHED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, OCTOBER 28, 1929:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF SEPTEMBER 25, 1929, REQUESTING DECISION OF A QUESTION PRESENTED, AS FOLLOWS:

PASQUE GENNOVARIO ENTERED THE MILITARY SERVICE OF THE UNITED STATES ON JUNE 25, 1909, AND WHILE IN SUCH SERVICE RECEIVED A FRACTURED TIBIA AS THE RESULT OF BEING RUN OVER BY A CAISSON. HE WAS TREATED FOR THIS CONDITION AND WAS REPORTED AS CONVALESCENT WHEN THE DIAGNOSIS WAS CHANGED TO PSYCHONEUROSIS AS RESULT OF THE INJURY. ON SEPTEMBER 3, 1910, HE WAS HONORABLY DISCHARGED FROM THE ARMY ON SURGEON'S CERTIFICATE OF DISABILITY BECAUSE OF TRAUMATIC PSYCHONEUROSIS. HE AGAIN ENTERED THE MILITARY SERVICE ON AUGUST 3, 1918, AND WAS HONORABLY DISCHARGED THEREFROM ON SURGEON'S CERTIFICATE OF DISABILITY BECAUSE OF CONSTITUTIONAL PSYCHOPATHIC STATE, PARANOID PERSONALITY, SEPTEMBER 21, 1918.

AFTER A REVIEW OF THE FILE, THE BUREAU HAS HELD THAT THE DISABILITY FOR WHICH THE CLAIMANT WAS DISCHARGED ON SEPTEMBER 21, 1918, WAS THE SAME DISABILITY FOR WHICH HE WAS DISCHARGED ON SEPTEMBER 3, 1910; THAT THE DISABILITY WAS NOTED PRIOR TO HIS ENTRY INTO THE MILITARY SERVICE DURING THE WORLD WAR; THAT IT WAS NOT AGGRAVATED BY SERVICE DURING THE WORLD WAR PERIOD AND THAT THEREFORE THE CLAIMANT IS NOT ENTITLED TO COMPENSATION FOR THIS DISABILITY UNDER THE WORLD WAR VETERANS' ACT UNLESS HE HAS AN ACCRUED RIGHT THERETO UNDER SECTION 602 OF THE WORLD WAR VETERANS' ACT, WHICH PROVIDES AS FOLLOWS:

"SEC. 602. THE REPEAL OF THE SEVERAL ACTS AS PROVIDED IN SECTIONS 600 AND 601 HEREOF SHALL NOT AFFECT ANY ACT DONE OR ANY RIGHT OR LIABILITY ACCRUED, OR ANY SUIT COMMENCED BEFORE THE SAID REPEAL, BUT ALL SUCH RIGHTS AND LIABILITIES UNDER SAID ACTS SHALL CONTINUE AND MAY BE ENFORCED IN THE SAME MANNER AS IF SAID REPEAL HAD NOT BEEN MADE; NOR SHALL SAID REPEAL IN ANY MANNER AFFECT THE RIGHT TO ANY OFFICE OR CHANGE THE TERM OR TENURE THEREOF.'

THE CLAIMANT'S RIGHT TO COMPENSATION AS AN ACCRUED RIGHT UNDER SECTION 602 OF THE WORLD WAR VETERANS' ACT DEPENDS ON HIS RIGHT TO COMPENSATION UNDER THE LAST PROVISO OF SECTION 300 OF THE WAR RISK INSURANCE ACT, AS AMENDED MARCH 4, 1923, WHICH READS AS FOLLOWS:

"* * * AND PROVIDED FURTHER, THAT COMPENSATION AS HEREINAFTER PROVIDED MAY BE PAID FOR DISABILITY RESULTING FROM PERSONAL INJURY OR DISEASE CONTRACTED IN LINE OF DUTY PRIOR TO APRIL 6, 1917, OR FOR AGGRAVATION OF A DISABILITY EXISTING PRIOR TO EXAMINATION, ACCEPTANCE, AND ENROLLMENT FOR SERVICE FOR SUCH AGGRAVATION SUFFERED AND CONTRACTED IN LINE OF DUTY PRIOR TO APRIL 6, 1917, BY ANY MEMBER OF THE MILITARY OR NAVAL FORCES IN ACTIVE SERVICE ON APRIL 6, 1917, WHO WAS DISCHARGED SUBSEQUENT TO APRIL 6, 1917. WITH THE EXCEPTION OF MEMBERS OF THE MILITARY AND NAVAL FORCES WHOSE INJURY WAS SUFFERED OR DISEASE CONTRACTED PRIOR TO APRIL 6, 1917, THIS SECTION SHALL BE DEEMED TO BE IN EFFECT AS OF APRIL 6, 1917.'

IN VIEW OF THE ABOVE, YOUR DECISION AS TO THE RIGHT OF THIS CLAIMANT TO COMPENSATION FOR THE DISABILITY WHICH WAS CONTRACTED IN THE MILITARY SERVICE PRIOR TO THE WORLD WAR IS RESPECTFULLY SOLICITED.

YOU REFER TO THE DECISION OF THIS OFFICE DATED APRIL 12, 1923, 2 COMP. GEN. 643, 645, CONSTRUING THE PORTION QUOTED ABOVE FROM SECTION 300 OF THE WAR RISK INSURANCE ACT AS AMENDED BY THE ACT OF MARCH 4, 1923, 42 STAT. 1523, WHEREIN IT WAS CONCLUDED AS FOLLOWS:

* * * THE CLAUSE "BY ANY MEMBER OF THE MILITARY OR NAVAL FORCES IN ACTIVE SERVICE ON APRIL 6, 1917," APPARENTLY SHOULD NOT BE CONSTRUED AS RELATING TO PERSONS SEEKING WAR RISK COMPENSATION FOR DISABILITIES OF SERVICE ORIGIN PRIOR TO APRIL 6, 1917, BUT THOSE IN THE SERVICE ON APRIL 6, 1917, AND THOSE REENTERING THE SERVICE SUBSEQUENT THERETO SHOULD BE CONSIDERED ALIKE IN THIS RESPECT. IT WOULD SEEM THAT CONGRESS COULD NOT HAVE HAD ANY REASON FOR MAKING A DISTINCTION.

BECAUSE OF THIS CONCLUSION YOU EXPRESS DOUBT WHETHER THE BENEFICIARY IN THE INSTANT CASE IS ENTITLED TO DISABILITY COMPENSATION UNDER THE WAR RISK INSURANCE ACT OR THE WORLD WAR VETERANS' ACT. IN THIS CONNECTION YOU QUOTE FROM AN OPINION OF THE GENERAL COUNSEL OF THE BUREAU CONCLUDING THAT THE VETERAN IN THE CASE HERE PRESENTED IS NOT ENTITLED TO DISABILITY COMPENSATION. YOU QUOTE, ALSO, FROM CONGRESSIONAL HEARINGS ON THE STATUTORY PROVISION.

YOUR ATTENTION IS RESPECTFULLY INVITED TO THE FIRST THREE PARAGRAPHS OF THE DECISION OF APRIL 12, 1923, CITED BY YOU, WHEREIN IS STATED THE PREMISE ON WHICH THE DECISION WAS BASED, SHOWING THAT TWO CLASSES OF CASES ONLY WERE CONSIDERED, (1) WHERE THE VETERAN HAD SUSTAINED TWO UNRELATED INJURIES OR DISABILITIES DURING MILITARY SERVICE, ONE PRIOR TO THE WORLD WAR AND THE OTHER DURING THE WORLD WAR, AND (2) WHERE THE VETERAN SUFFERED AN AGGRAVATION DURING WORLD WAR SERVICE OF AN INJURY OR DISABILITY SUSTAINED IN MILITARY SERVICE PRIOR TO THE WORLD WAR. IN OTHER WORDS, THERE WAS INVOLVED EITHER AN INJURY OR DISABILITY, OR AN AGGRAVATION OF A PRIOR INJURY OR DISABILITY, DURING WORLD WAR SERVICE. IT SEEMED ONLY REASONABLE TO THIS OFFICE AT THAT TIME THAT THE LAW INTENDED THOSE IN THE SERVICE ON THE PARTICULAR DAY OF APRIL 6, 1917, AND THOSE WHO REENTERED SHORTLY THEREAFTER DURING THE WORLD WAR, TO BE TREATED ALIKE.

THERE WAS NOT INVOLVED NOR DECIDED IN THAT CASE THE QUESTION INVOLVED IN THE INSTANT CASE, AS TO THE RIGHT OF A VETERAN UNDER THE WAR RISK INSURANCE ACT WHO HAD SUSTAINED AN INJURY OR DISABILITY IN THE MILITARY SERVICE PRIOR TO APRIL 6, 1917, BUT WHO WAS NOT IN THE SERVICE ON THAT DATE, AND WHO SUSTAINED NO ADDITIONAL INJURY OR DISABILITY, OR AGGRAVATION OF PRIOR INJURY OR DISABILITY, DURING SUBSEQUENT SERVICE IN THE WORLD WAR. AS TO THIS CLASS OF CASES THE TERMS OF THE STATUTE ARE CLEARLY AND DEFINITELY TO THE EFFECT THAT THE VETERAN MUST HAVE BEEN IN THE SERVICE ON APRIL 6, 1917, TO GRANT HIM A RIGHT TO BENEFITS UNDER THE WAR RISK INSURANCE ACT. APPARENTLY, THE INTENT WAS THAT MILITARY SERVICE BEGUN PRIOR TO AND CONTINUING AFTER APRIL 6, 1917, WAS WORLD WAR SERVICE WITH RELATION TO THE INCURRENCE OF AN INJURY OR DISABILITY FOR THE PURPOSE OF DETERMINING THE RIGHTS TO DISABILITY COMPENSATION UNDER THE PROVISIONS OF THE WAR RISK INSURANCE ACT. A REENTRY INTO THE SERVICE DURING THE WORLD WAR, THAT IS, AFTER APRIL 6, 1917, DID NOT, IPSO FACTO, CREATE A RIGHT UNDER THE WAR RISK INSURANCE ACT OR THE WORLD WAR VETERANS' ACT TO COMPENSATION BASED ON AN INJURY OR DISABILITY INCURRED DURING A PERIOD OF SERVICE FINALLY TERMINATED PRIOR TO THE WORLD WAR, WHERE THE INJURY OR DISABILITY WAS NOT AGGRAVATED BY WORLD WAR SERVICE.

PAYMENT OF WAR RISK DISABILITY COMPENSATION IN THE INSTANT CASE IS NOT AUTHORIZED ON THE RECORD AS SUBMITTED BY YOU.