A-31895, JUNE 18, 1930, 9 COMP. GEN. 515

A-31895: Jun 18, 1930

Additional Materials:

Contact:

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

 

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

IF DISABILITY IS OF A COMPENSABLE DEGREE. EVEN THOUGH THE DISABILITY FOR WHICH THE HOSPITALIZATION WAS FURNISHED IS LATER DETERMINED NOT TO HAVE BEEN SERVICE CONNECTED. PROVIDED CLAIM IS MADE WITHIN TWO YEARS AFTER THE INJURY OR AGGRAVATION AS A RESULT OF HOSPITALIZATION WAS SUFFERED. SUBMITTING FOR DECISION A QUESTION PRESENTED AS FOLLOWS: I HAVE THE HONOR TO SOLICIT YOUR DECISON ON THE CASE OF LEON SILVER. WHICH IS NOW PENDING IN THE BUREAU FOR ADJUDICATION. THE FACTS IN THIS CASE MAY BE STATED AS FOLLOWS: LEON SILVER WAS CALLED INTO THE SERVICE ON SEPTEMBER 21. UNDER SELECTIVE SERVICE ACT AND WAS DISCHARGED "FROM THE DRAFT" ON OCTOBER 13. SEVERAL RATINGS WERE MADE BY THE BUREAU HOLDING THAT THE CLAIMANT'S DISABILITY HAD NOT BEEN INCURRED IN OR AGGRAVATED DURING THE PERIOD OF HIS SERVICE AS A DRAFTEE.

A-31895, JUNE 18, 1930, 9 COMP. GEN. 515

VETERANS' BUREAU - DISABILITY COMPENSATION UNDER SECTION 213 OF THE WORLD WAR VETERANS' ACT, AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1308, A BENEFICIARY OF THE VETERANS' BUREAU WHO SUFFERS AN INJURY OR AGGRAVATION OF AN EXISTING INJURY AS THE RESULT OF HOSPITALIZATION FURNISHED BY THE BUREAU, MAY BE AWARDED COMPENSATION, IF DISABILITY IS OF A COMPENSABLE DEGREE, EVEN THOUGH THE DISABILITY FOR WHICH THE HOSPITALIZATION WAS FURNISHED IS LATER DETERMINED NOT TO HAVE BEEN SERVICE CONNECTED, PROVIDED CLAIM IS MADE WITHIN TWO YEARS AFTER THE INJURY OR AGGRAVATION AS A RESULT OF HOSPITALIZATION WAS SUFFERED.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JUNE 18, 1930:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF MAY 15, 1930, SUBMITTING FOR DECISION A QUESTION PRESENTED AS FOLLOWS:

I HAVE THE HONOR TO SOLICIT YOUR DECISON ON THE CASE OF LEON SILVER, XC- 319885, WHICH IS NOW PENDING IN THE BUREAU FOR ADJUDICATION. THE FACTS IN THIS CASE MAY BE STATED AS FOLLOWS:

LEON SILVER WAS CALLED INTO THE SERVICE ON SEPTEMBER 21, 1917, UNDER SELECTIVE SERVICE ACT AND WAS DISCHARGED "FROM THE DRAFT" ON OCTOBER 13, 1917 BY REASON OF DISABILITY. ON NOVEMBER 4, 1919 MR. SILVER EXECUTED AN APPLICATION FOR DISABILITY COMPENSATION ALLEGING A DISABILITY OF ,TUBERCULOSIS AND CHRONIC EAR.' SEVERAL RATINGS WERE MADE BY THE BUREAU HOLDING THAT THE CLAIMANT'S DISABILITY HAD NOT BEEN INCURRED IN OR AGGRAVATED DURING THE PERIOD OF HIS SERVICE AS A DRAFTEE, BUT SUBSEQUENTLY THE BUREAU HELD THAT THE AGGRAVATION HAD TAKEN PLACE DURING THE PERIOD OF DRAFT SERVICE, AND THE TUBERCULAR DISABILITY WAS RATED AS SERVICE CONNECTED. THE RATING OF SERVICE CONNECTION WAS CONTINUED UNTIL SEPTEMBER, 1929, WHEN AFTER A CAREFUL REVIEW OF THE COMPLETE FILE IT WAS HELD THAT THE DISABILITY WAS NOT SHOWN TO HAVE BEEN INCURRED IN OR AGGRAVATED BY SERVICE AND SERVICE CONNECTION WAS SEVERED.

ON JANUARY 17, 1924, AT WHICH TIME THE DISABILITY WAS RATED AS SERVICE CONNECTED, THE CLAIMANT WAS HOSPITALIZED IN THE PACIFIC BRANCH OF THE NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS, LOS ANGELES, CALIF., AS A BUREAU PATIENT. HE REMAINED IN THIS HOSPITAL AS A BUREAU PATIENT UNTIL APRIL 17, 1928, WHEN HE WAS DISCHARGED AGAINST MEDICAL ADVICE. WHILE A PATIENT IN THIS HOSPITAL THE VETERAN WAS GIVEN X-RAY TREATMENTS AND AS A RESULT THEREOF A DISABILITY OF DERMATITIS WITH ULCERATIONS WAS INCURRED.

THE QUESTION WHICH ARISES IN THIS CASE IS WHETHER THE DISABILITY OF DERMATITIS WITH ULCERATIONS RESULTING FROM X-RAY TREATMENTS CAN BE HELD TO BE SERVICE CONNECTED UNDER THE PROVISIONS OF SEC. 213 OF THE WORLD WAR VETERANS' ACT, WHICH READS AS FOLLOWS:

"WHERE ANY BENEFICIARY SUFFERS OR HAS SUFFERED AN INJURY OR AN AGGRAVATION OF AN EXISTING INJURY AS THE RESULT OF TRAINING, HOSPITALIZATION, OR MEDICAL OR SURGICAL TREATMENT, AWARDED TO HIM UNDER THE VOCATIONAL REHABILITATION ACT AS AMENDED, THE WAR RISK INSURANCE ACT AS AMENDED, OR THIS ACT, OR AS A RESULT OF HAVING SUBMITTED TO EXAMINATION UNDER AUTHORITY OF SECTION 303 OF THE WAR RISK INSURANCE ACT OR SECTION 203 OF THIS ACT, AND NOT THE RESULT OF HIS MISCONDUCT, AND SUCH INJURY OR AGGRAVATION OF AN EXISTING INJURY RESULTS IN ADDITIONAL DISABILITY TO OR THE DEATH OF SUCH BENEFICIARY, THE BENEFITS OF THIS TITLE SHALL BE AWARDED IN THE SAME MANNER AS THOUGH SUCH DISABILITY, AGGRAVATION, OR DEATH WAS THE RESULT OF MILITARY SERVICE DURING THE WORLD WAR. THE BENEFITS OF THIS SECTION SHALL BE IN LIEU OF THE BENEFITS UNDER THE ACT ENTITLED "AN ACT TO PROVIDE COMPENSATION FOR EMPLOYEES OF THE UNITED STATES SUFFERING INJURIES WHILE IN THE PERFORMANCE OF THEIR DUTIES, AND FOR OTHER PURPOSES," APPROVED SEPTEMBER 7, 1916: PROVIDED, THAT APPLICATION BE MADE FOR SUCH BENEFITS WITHIN TWO YEARS AFTER SUCH INJURY OR AGGRAVATION WAS SUFFERED OR SUCH DEATH OCCURRED OR AFTER THE PASSAGE OF THIS ACT, WHICHEVER IS THE LATER DATE: PROVIDED FURTHER, THAT THE PROVISIONS OF SECTION 313 OF THE WAR RISK INSURANCE ACT AS AMENDED, RELATING TO SUBROGATION, SHALL BE APPLICABLE TO BENEFICIARIES UNDER THIS SECTION.

THE PLAIN INTENT OF SECTION 213 OF THE STATUTE, AMENDED, AS ABOVE QUOTED, BY THE ACT OF MARCH 4, 1925, 43 STATUTE 1308, WAS TO AFFORD VETERANS SOME MEASURE OF COMPENSATION IN THOSE CASES IN WHICH THE DISABILITY ARISES THROUGH ACCIDENT, CARELESSNESS, NEGLIGENCE, LACK OF PROPER SKILL, ERROR IN JUDGMENT, ETC., ON THE PART OF ANY PERSON CHARGED WITH A DUTY RESPECTING THE HOSPITALIZATION, OR MEDICAL OR SURGICAL TREATMENT PURSUANT TO AN AWARD UNDER EITHER OF THE ACTS THEREIN MENTIONED. THAT SAID SECTION WAS INTENDED TO BE APPLICABLE TO ALL CLASSES OF GOVERNMENTAL HOSPITALIZATION AUTHORIZED UNDER THE STATUTE, WHETHER FOR SERVICE CONNECTED OR NONSERVICE- CONNECTED DISABILITIES, IS EVIDENT FROM THE SPECIFIC INCLUSION OF VETERANS HOSPITALIZED UNDER AUTHORITY OF SECTION 203 OF THE STATUTE WHICH PROVIDES FOR HOSPITALIZATION, FOR PURPOSES OF OBSERVATION AND EXAMINATION, OF APPLICANTS FOR DISABILITY COMPENSATION AND APPLICANTS FOR TREATMENT UNDER SUBDIVISIONS (9) AND (10) OF SECTION 202 OF THE STATUTE, THE LATTER OF WHICH AUTHORIZES HOSPITALIZATION FOR NONSERVICE CONNECTED DISABILITIES.

IN THIS CASE HOSPITALIZATION WAS AUTHORIZED AS INCIDENT TO DISABILITY COMPENSATION THEN RUNNING AND WHICH HAD BEEN AWARDED PURSUANT TO THE TERMS OF THE STATUTE AS FOR A DISABILITY THEN RECORDED AS SERVICE CONNECTED. HOSPITALIZATION AS INCIDENT TO RECEIPT OF COMPENSATION IS A RIGHT OF THE BENEFICIARY UNDER THE TERMS OF SECTION 202 (6) OF THE STATUTE. SUBSEQUENT FINDING BY THE BUREAU UPON REVIEW UNDER SECTION 205, THAT THE DISABILITY FOR WHICH COMPENSATION HAD PREVIOUSLY BEEN AWARDED AND INCIDENT TO WHICH THE HOSPITALIZATION HAD BEEN GRANTED, WAS NOT SERVICE CONNECTED, NECESSITATING DISCONTINUANCE OF COMPENSATION, IS NOT "EFFECTIVE UNTIL THE FIRST DAY OF THE THIRD CALENDAR MONTH NEXT SUCCEEDING IN WHICH SUCH * * * DISCONTINUANCE IS DETERMINED.' CONSEQUENTLY, SUCH A REVIEW AND FINDING OF NONSERVICE CONNECTION WOULD NOT INVALIDATE THE HOSPITALIZATION GRANTED DURING THE PERIOD THE AWARD OF COMPENSATION HAD BEEN RUNNING; NOR IS AN AWARD OF COMPENSATION UNDER SECTION 213 FOR AN INJURY OR AGGRAVATION OF AN EXISTING INJURY AS A RESULT OF SUCH HOSPITALIZATION, INVALIDATED BY THE REVIEW AND FINDING OF NONSERVICE CONNECTION. ALSO, AN APPLICATION FOR DISABILITY COMPENSATION BASED ON THE PROVISIONS OF SECTION 213 MAY BE ENTERTAINED EVEN IF FILED AFTER THE DISABILITY COMPENSATION AS AN INCIDENT OF WHICH THE HOSPITALIZATION WAS FURNISHED MAY BE TERMINATED AS A RESULT OF REVIEW AND RERATING, IF "MADE * * * WITHIN TWO YEARS" AFTER THE INJURY OR AGGRAVATION AS A RESULT OF HOSPITALIZATION WAS SUFFERED.

IN THIS CASE COMPENSATION FOR THE DISABILITY OF "DERMATITIS WITH ULCERATIONS RESULTING FROM X-RAY TREATMENTS" MAY BE AWARDED IF OF COMPENSABLE DEGREE THE SAME AS THOUGH THE FORMER DISABILITY HAD BEEN SERVICE CONNECTED AND THE DISCONTINUANCE OF COMPENSATION THEREFOR HAD DUE TO A COMPLETE RECOVERY FROM SAID DISABILITY.

THE FACTS AS TO THE FILING OF APPLICATION UNDER SECTION 213 DO NOT CLEARLY APPEAR, AND IT IS TO BE UNDERSTOOD, OF COURSE, THAT UNLESS THE APPLICATION WAS ACTUALLY MADE WITHIN TWO YEARS AFTER THE DISABILITY FROM THE X-RAY TREATMENTS WAS SUFFERED, THE BENEFITS PROVIDED FOR UNDER SAID SECTION MAY NOT BE GRANTED.