B-157230, AUG. 13, 1965

B-157230: Aug 13, 1965

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THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR SETTLEMENT OF JANUARY 28. WAS IN ACCORDANCE WITH PARAGRAPH 5. PARAGRAPH 5 (3) PROVIDES IN PART AS FOLLOWS: "A PHYSICIAN (SPECIALIST) * * * WHO IS RECEIVING BASIC COMPENSATION IMMEDIATELY PRIOR TO OCTOBER 14. AS FOLLOWS: FROM STEP 1 TO STEP 6 * * *" THE PAYMENT OF A SPECIALIST'S ALLOWANCE IS LIMITED TO DOCTORS OF MEDICINE AND SURGERY. ADMINISTRATIVE APPROVAL OF A SPECIALTY RATING IS PREREQUISITE TO THIS PAYMENT. PROVIDED THAT THE ADMINISTRATIVE APPROVAL OFA SPECIALTY IS BASED ON SUBMISSION OF EVIDENCE THAT THE INDIVIDUAL HAS QUALIFIED AS A SPECIALIST IN HIS FIELD. THAT THE DIRECTOR OF THE HOSPITAL WHERE YOU WERE EMPLOYED APPROVED SUCH RATING.

B-157230, AUG. 13, 1965

TO FRANK Q. NUTTALL, M.D.:

THIS REFERS TO YOUR LETTER OF JUNE 11, 1965, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OUR OFFICE SETTLEMENT OF JANUARY 28, 1964, WHICH SUSTAINED THE COLLECTION ACTION OF THE ADMINISTRATIVE OFFICE BECAUSE OF A SALARY OVERPAYMENT TO YOU AS AN EMPLOYEE OF THE VETERANS ADMINISTRATION HOSPITAL, MINNEAPOLIS, MINNESOTA.

THE FACTS IN YOUR CASE WERE FULLY SET FORTH IN OUR SETTLEMENT OF JANUARY 28, 1964, AND NEED NOT BE REPEATED HERE. YOU CONTEND THAT YOUR ADVANCEMENT FROM SENIOR GRADE, FIRST STEP, $12,845 PER ANNUM TO SENIOR GRADE, SIXTH STEP, $14,970 PER ANNUM, EFFECTIVE NOVEMBER 25, 1962, WAS IN ACCORDANCE WITH PARAGRAPH 5, SUBPARAGRAPH 3 OF VETERANS ADMINISTRATION CIRCULAR 62-9, DATED OCTOBER 18, 1962. PARAGRAPH 5 (3) PROVIDES IN PART AS FOLLOWS:

"A PHYSICIAN (SPECIALIST) * * * WHO IS RECEIVING BASIC COMPENSATION IMMEDIATELY PRIOR TO OCTOBER 14, 1962, AT THE FIRST * * * STEP * * * IN * * * SENIOR GRADE SHALL BE ADVANCED FROM HIS EXISTING STEP RATE TO A NEW STEP RATE WITHIN HIS GRADE, AS FOLLOWS: FROM STEP 1 TO STEP 6 * * *"

THE PAYMENT OF A SPECIALIST'S ALLOWANCE IS LIMITED TO DOCTORS OF MEDICINE AND SURGERY, DENTAL SURGERY, AND DENTAL MEDICINE. ADMINISTRATIVE APPROVAL OF A SPECIALTY RATING IS PREREQUISITE TO THIS PAYMENT. THE REGULATIONS IN EFFECT ON NOVEMBER 25, 1962, THE DATE OF YOUR ERRONEOUS ADVANCEMENT, PROVIDED THAT THE ADMINISTRATIVE APPROVAL OFA SPECIALTY IS BASED ON SUBMISSION OF EVIDENCE THAT THE INDIVIDUAL HAS QUALIFIED AS A SPECIALIST IN HIS FIELD. THE REGULATIONS GO ON TO PROVIDE THAT SUCH EVIDENCE SHALL BE IN THE FORM OF A LETTER, A CERTIFICATE, OR A PHOTOSTAT OF A CERTIFICATE FROM THE APPROPRIATE AMERICAN SPECIALTY BOARD, WHICH BOARD HAS BEEN APPROVED BY THE ADMINISTRATOR, AND THAT THE MANAGER (NOW DIRECTOR OF A HOSPITAL) ON THE BASIS OF THIS EVIDENCE AND ON THE RECOMMENDATION OF THE DIRECTOR, PROFESSIONAL SERVICES, OR DIRECTOR OF CLINIC, AS APPROPRIATE, MAY APPROVE FOR THE CHIEF MEDICAL DIRECTOR THE RATING OF A PHYSICIAN OR SPECIALIST.

THE RECORD SHOWS THAT YOU PRESENTED THE NECESSARY DOCUMENTS SHOWING THAT YOU HAD QUALIFIED AS A SPECIALIST ON NOVEMBER 8, 1962, AND THAT THE DIRECTOR OF THE HOSPITAL WHERE YOU WERE EMPLOYED APPROVED SUCH RATING. OR ABOUT THE SAME TIME THE DIRECTOR AND/OR THE CIVILIAN PERSONNEL OFFICE AT THE HOSPITAL, ON THE BASIS OF AN INTERPRETATION OF THE ABOVE-QUOTED REGULATION, CAME TO THE CONCLUSION THAT YOU WERE ENTITLED TO AN ADVANCEMENT TO THE SIXTH STEP OF YOUR GRADE. THEREAFTER, THE CENTRAL OFFICE OF THE VETERANS ADMINISTRATION INDICATED THAT THE INTERPRETATION OF THE REGULATION IN YOUR CASE WAS ERRONEOUS IN THAT IT ONLY WAS INTENDED TO APPLY TO A DOCTOR WHO WAS RATED AS A SPECIALIST PRIOR TO OCTOBER 14, 1962. HENCE, YOU WERE HELD TO BE INDEBTED FOR THE DIFFERENCE IN SALARY FROM NOVEMBER 25, 1962, TO MARCH 16, 1963, WHEN OTHER REGULATIONS WERE ISSUED CLEARLY PROVIDING FOR YOUR ADVANCEMENT TO THE HIGHER STEP IN QUESTION.

UNDER THE RELATED CIRCUMSTANCES OUR VIEW IS THAT THE HOSPITAL DIRECTOR'S INTERPRETATION OR CONSTRUCTION OF THE REGULATION SET FORTH ABOVE WAS NOT UNREASONABLE. THEREFORE, WE HOLD THAT THE SALARY OF THE SIXTH STEP OF YOUR GRADE TO WHICH YOU WERE ADVANCED ON NOVEMBER 25, 1962 ($14,970) BECAME YOUR LEGAL SALARY RATE AND THAT ANY ACTION TO RECOVER THE DIFFERENCE BETWEEN THAT RATE AND $12,845, THE RATE OF THE FIRST STEP, WAS IMPROPER.

WE ARE SENDING A COPY OF THIS DECISION TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, IN ORDER THAT COLLECTION ACTION IN THE MATTER MAY BE CANCELLED AND REFUND MADE TO YOU OF ANY AMOUNTS PREVIOUSLY COLLECTED.