A-68297, DECEMBER 14, 1935, 15 COMP. GEN. 514

A-68297: Dec 14, 1935

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VETERANS' ADMINISTRATION - COMPENSATION - DEATH FROM NON-SERVICE CONNECTED CAUSE WHILE SUFFERING WITH SERVICE-CONNECTED DISABILITY AMENDMENT TO EXISTING VETERANS' ADMINISTRATION REGULATIONS IS NOT AUTHORIZED TO PERMIT AN AWARD OF DEATH COMPENSATION UNDER THE ACT OF JUNE 28. 1935: THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 29. WHICH IS NOW PENDING BEFORE THIS ADMINISTRATION. OR IF THE PERSON WAS SERVING WITH THE UNITED STATES MILITARY FORCES IN RUSSIA BEFORE APRIL 2. PROVIDES: "THAT THE ADMINISTRATOR OF VETERANS' AFFAIRS IS AUTHORIZED AND DIRECTED TO RECEIVE EVIDENCE AND ADJUDICATE CLAIM FOR COMPENSATION UNDER THIS ACT WHEN IT IS CLAIMED THAT THE VETERAN WAS 30 PERCENTUM OR MORE DISABLED IMMEDIATELY PRIOR TO HIS DEATH FROM DISEASE OR INJURY ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION PRIOR TO DATE OF DEATH TO HAVE BEEN DIRECTLY INCURRED IN OR AGGRAVATED BY SERVICE IN THE WORLD WAR.

A-68297, DECEMBER 14, 1935, 15 COMP. GEN. 514

VETERANS' ADMINISTRATION - COMPENSATION - DEATH FROM NON-SERVICE CONNECTED CAUSE WHILE SUFFERING WITH SERVICE-CONNECTED DISABILITY AMENDMENT TO EXISTING VETERANS' ADMINISTRATION REGULATIONS IS NOT AUTHORIZED TO PERMIT AN AWARD OF DEATH COMPENSATION UNDER THE ACT OF JUNE 28, 1934, 48 STAT. 1281, FOR DEATH OF A VETERAN FROM NON-SERVICE CONNECTED CAUSE WHILE SUFFERING WITH A 30 PERCENT OR MORE SERVICE CONNECTED DISABILITY, IN CASES WHERE THE EVIDENCE OF SERVICE CONNECTION OF THE DISABILITY HAS BEEN SUBMITTED TO THE VETERANS' ADMINISTRATION SUBSEQUENT TO THE VETERAN'S DEATH.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 14, 1935:

THERE WAS RECEIVED YOUR LETTER OF NOVEMBER 29, 1935, AS FOLLOWS:

IN CONNECTION WITH THE CASE OF NATHAN KORUS, XC-1,888,715, WHICH IS NOW PENDING BEFORE THIS ADMINISTRATION, THERE HAS ARISEN A QUESTION AS TO WHETHER THE EXISTING REGULATIONS MAY BE AMENDED SO AS TO PERMIT AN AWARD OF DEATH COMPENSATION UNDER PUBLIC, NO. 484, 73D CONGRESS, WHERE EVIDENCE SHOWING A DIRECTLY SERVICE CONNECTED DISABILITY (ALL OTHER ELEMENTS OF ENTITLEMENT BEING PRESENT) HAS BEEN SUBMITTED TO THE VETERANS' ADMINISTRATION BY THE WIDOW SUBSEQUENT TO THE VETERAN'S DEATH.

PUBLIC, NO. 484, 73D CONGRESS, IN SECTION 1, AUTHORIZES THE PAYMENT OF DEATH COMPENSATION TO:

"* * * THE SURVIVING WIDOW, CHILD, OR CHILDREN, OF ANY DECEASED PERSON WHO SERVED IN THE WORLD WAR BEFORE NOVEMBER 12, 1918, OR IF THE PERSON WAS SERVING WITH THE UNITED STATES MILITARY FORCES IN RUSSIA BEFORE APRIL 2, 1920, WHO, WHILE RECEIVING OR ENTITLED TO RECEIVE COMPENSATION, PENSION, OR RETIREMENT PAY FOR 30-PERCENTUM DISABILITY OR MORE DIRECTLY INCURRED IN OR AGGRAVATED BY SERVICE IN THE WORLD WAR DIES OR HAS DIED FROM A DISEASE OR DISABILITY NOT SERVICE CONNECTED AND NOT THE RESULT OF THE PERSON'S OWN MISCONDUCT SHALL, UPON FILING APPLICATION AND SUCH PROOFS IN THE VETERANS' ADMINISTRATION AS THE ADMINISTRATOR OF VETERANS' AFFAIRS MAY PRESCRIBE, BE ENTITLED TO RECEIVE COMPENSATION * * *.'

SECTION 4 OF PUBLIC, NO. 484, PROVIDES:

"THAT THE ADMINISTRATOR OF VETERANS' AFFAIRS IS AUTHORIZED AND DIRECTED TO RECEIVE EVIDENCE AND ADJUDICATE CLAIM FOR COMPENSATION UNDER THIS ACT WHEN IT IS CLAIMED THAT THE VETERAN WAS 30 PERCENTUM OR MORE DISABLED IMMEDIATELY PRIOR TO HIS DEATH FROM DISEASE OR INJURY ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION PRIOR TO DATE OF DEATH TO HAVE BEEN DIRECTLY INCURRED IN OR AGGRAVATED BY SERVICE IN THE WORLD WAR, ALTHOUGH A DETERMINATION OF 30-PERCENTUM DISABILITY OR MORE HAD NOT BEEN MADE BY THE VETERANS' ADMINISTRATION PRIOR TO THE VETERAN'S DEATH: PROVIDED, THAT FOR THE PURPOSE OF AWARDING COMPENSATION UNDER THE PROVISIONS OF THIS ACT, DIRECT SERVICE CONNECTION OF DISABILITY AND DEGREE THEREOF AT DATE OF DEATH MAY BE DETERMINED IN ANY CASE WHERE CLAIM HAS BEEN OR IS FILED BY THE WIDOW, CHILD, OR CHILDREN OF A DECEASED WORLD WAR VETERAN, EXCEPT THAT PROOF OF 30-PERCENTUM DISABILITY OR MORE AT DATE OF DEATH MUST BE FILED NO LATER THAN THREE YEARS AFTER DATE OF ENACTMENT OF THIS ACT OR THE DATE OF DEATH, WHICHEVER IS THE LATER, AND EVIDENCE REQUIRED IN CONNECTION WITH ANY CLAIM MUST BE SUBMITTED IN ACCORDANCE WITH REGULATIONS PRESCRIBED BY THE PRESIDENT AND/OR THE ADMINISTRATOR OF VETERANS' AFFAIRS.'

PURSUANT TO THE AUTHORITY VESTED IN ME UNDER THE PROVISIONS OF THE STATUTES QUOTED ABOVE, I HAVE PROMULGATED VETERANS' ADMINISTRATION REGULATION NO. 1, PUBLIC, NO. 484, 73D CONGRESS, WHICH PROVIDES, IN SO FAR AS IT IS MATERIAL, AS FOLLOWS:

"* * * THE EXISTENCE OF THE DIRECTLY SERVICE-CONNECTED DISEASE OR INJURY MUST HAVE BEEN ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION PRIOR TO THE DATE OF THE VETERAN'S DEATH, BUT THE DETERMINATION OF A 30 PERCENTUM DISABILITY, RESULTING FROM SUCH DISEASE OR INJURY, MAY BE BASED UPON EVIDENCE FILED SUBSEQUENT TO DEATH, AND THE PROOF OF 30 PERCENTUM OR MORE DISABILITY MUST BE FILED WITHIN THREE YEARS FROM THE DATE OF DEATH OR FROM JUNE 28, 1934, WHICHEVER IS THE LATER DATE: PROVIDED, THAT A DISEASE OR INJURY OR AN AGGRAVATION THEREOF WILL BE CONSIDERED AS HAVING BEEN ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION WHERE THE EVIDENCE OF RECORD IN THE VETERANS' ADMINISTRATION OR IN THE WAR OR NAVY DEPARTMENTS, PRIOR TO THE VETERAN'S DEATH, SHOWS THE EXISTENCE OF SUCH DISEASE OR INJURY AND AS HAVING BEEN DIRECTLY INCURRED IN OR AGGRAVATED BY SERVICE * * *.'

THE VETERANS' ADMINISTRATION IS IN RECEIPT OF CLAIMS, SUCH AS THE INSTANT CASE, FOR BENEFITS UNDER PUBLIC, NO. 484, WHERE EVIDENCE IS SUBMITTED BY A WIDOW SUBSEQUENT TO THE DATE OF DEATH OF THE VETERAN, WHICH UPON CONSIDERATION WARRANTS A FINDING THAT THE VETERAN WAS AT THE DATE OF HIS DEATH SUFFERING FROM A DIRECTLY SERVICE CONNECTED DISABILITY TO A DEGREE OF 30 PERCENTUM OR MORE. THIS EVIDENCE WAS NOT IN THE FILES OF THE VETERANS' ADMINISTRATION OR IN THE WAR OR NAVY DEPARTMENTS PRIOR TO THE VETERAN'S DEATH, BUT IS NOW IN THE FILES OF THE VETERANS' ADMINISTRATION.

THE SOLICITOR OF THIS ADMINISTRATION HAS ADVISED ME THAT I MAY, UNDER THE PROVISIONS OF PUBLIC NO. 484, AMEND VETERANS' ADMINISTRATION REGULATION NO. 1, SUPRA, SO AS TO PERMIT PAYMENT OF SUCH CLAIMS, ALL OTHER ELEMENTS OF ENTITLEMENT BEING PRESENT.

CERTAIN OFFICIALS CHARGED WITH THE ADJUDICATION OF CLAIMS IN THE ADMINISTRATION EXPRESS THE VIEW THAT AN AMENDMENT TO THE REGULATION TO PERMIT THE ALLOWANCE OF SUCH CLAIMS WOULD BE IN EXCESS OF THE AUTHORITY CONFERRED UPON ME BY PUBLIC NO. 484.

THERE IS INCLOSED A COPY OF MEMORANDUM OPINION ADDRESSED TO ME BY THE SOLICITOR UNDER DATE OF SEPTEMBER 26, 1935. BEFORE TAKING FINAL ACTION ON THE QUESTION OF AMENDMENT I DESIRE TO SOLICIT YOUR DECISION AS TO MY AUTHORITY IN THE PREMISES.

THE ACT FROM WHICH YOU QUOTE IS THE ACT OF JUNE 28, 1934, 48 STAT. 1281, 1282.

SECTION 1 OF THE STATUTE LIMITS THE RIGHT OF A WIDOW TO RECEIVE THE DEATH COMPENSATION TO CASES WHERE THE VETERAN DIED ON ACCOUNT OF A NON SERVICE- CONNECTED DISEASE OR DISABILITY WHILE RECEIVING OR ENTITLED TO RECEIVE COMPENSATION, PAYMENT, OR RETIREMENT PAY FOR A 30 PERCENT OR MORE SERVICE- CONNECTED DISABILITY.

THE MAIN BODY OF SECTION 4 OF THE STATUTE REQUIRES, AS A PREREQUISITE TO ADJUDICATION OF THE WIDOW'S CLAIM, THAT THE SERVICE CONNECTION OF THE DISEASE OR INJURY CLAIMED TO HAVE RESULTED IN DISABILITY OF 30 PERCENT OR MORE MUST HAVE BEEN ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION "PRIOR TO DATE OF DEATH" OF THE VETERAN, ALTHOUGH THE DEGREE OF THE DISABILITY NEED NOT HAVE BEEN DETERMINED PRIOR TO SUCH DEATH. IN OTHER WORDS SERVICE CONNECTION, BUT NOT THE DEGREE OF DISABILITY SUFFERED BY THE VETERAN, MUST HAVE BEEN ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION PRIOR TO THE DEATH OF THE VETERAN. THE PROVISO TO SECTION 4 IS NOT IN CONFLICT WITH THE MAIN BODY OF THE SECTION, AS HAS BEEN SUGGESTED, AND DOES NOT ELIMINATE NOR IN ANY WAY AFFECT THE CONDITION PRECEDENT PRESCRIBED IN SECTION 1 THAT SERVICE CONNECTION OF THE DISABILITY SUFFERED BY THE VETERANS MUST HAVE BEEN ESTABLISHED TO THE SATISFACTION OF THE VETERANS' ADMINISTRATION PRIOR TO THE DEATH OF THE VETERAN. THE PROVISO SIMPLY INSURES THAT THE BENEFITS OF THE STATUTE MAY BE GRANTED IF OTHERWISE PROPER, WHETHER CLAIMS HAVE BEEN FILED OR ARE LATER FILED AND PLACES A LIMITATION OF 3 YEARS FROM THE DATE OF THE ACT OR FROM THE DEATH OF THE VETERAN, WHICHEVER IS LATER, ON THE FILING OF EVIDENCE AS TO THE DEGREE OF THE DISABILITY JUST PRIOR TO THE VETERAN'S DEATH AND THAT SUCH DISABILITY RESULTED FROM THE DISEASE OR INJURY WHICH PRIOR TO THE VETERAN'S DEATH HAD BEEN ESTABLISHED AS SERVICE CONNECTED.

I HAVE TO ADVISE, THEREFORE, THAT THE PROPOSED AMENDMENT TO THE REGULATIONS IS NOT AUTHORIZED UNDER THE STATUTE.