A-6470, JULY 24, 1925, 5 COMP. GEN. 51

A-6470, JULY 24, 1925, 5 COMP. GEN. 51

VETERANS' BUREAU--- DISABILITY COMPENSATION--- CONCLUSIVE PRESUMPTION OF SOUNDNESS IF THE DISABILITY THAT AN EX-SERVICE MAN HAS IS OF SUCH A CHARACTER AS TO INDICATE THAT IT RESULTED FROM INFECTION OF A VENEREAL DISEASE, AND HE IS FOR THAT REASON REQUIRED TO REBUT EVIDENCE OF MISCONDUCT, NEITHER THE CONCLUSIVE PRESUMPTION OF SOUNDNESS UPON ENTRANCE INTO THE SERVICE CREATED BY THE FIRST PROVISO OF SECTION 200 OF THE WORLD WAR VETERANS' ACT AS AMENDED BY THE ACT OF MARCH 4, 1925, 43 STAT. 1305, NOR THE PRIMA FACIE PRESUMPTION AS TO SERVICE CONNECTION OF SPECIFIED DISABILITIES CREATED BY THE LAST PROVISO OF THE SAME SECTION, MAY BE INVOKED TO ESTABLISH IPSO FACTO A CLAIM FOR DISABILITY COMPENSATION, BUT CLAIMANT WOULD BE REQUIRED, NOTWITHSTANDING THE STATUTORY PRESUMPTIONS, TO ESTABLISH AFFIRMATIVELY THAT THE DISABILITY WAS INCURRED DURING THE PERIOD OF MILITARY OR NAVAL SERVICE, INNOCENTLY AND NOT THE RESULT OF HIS OWN WILLFUL MISCONDUCT. IF THE DISABILITY WAS NOT OF SUCH A CHARACTER AS TO INDICATE THE RESULT OF A VENEREAL DISEASE, THE STATUTORY PRESUMPTIONS MAY NOT BE IGNORED BY THE GOVERNMENT, BUT IF CONDITIONS THEREOF ARE MET, SAME WOULD BE EFFECTIVE TO ESTABLISH A CLAIM FOR DISABILITY COMPENSATION NOTWITHSTANDING RECORD EVIDENCE SHOWING INCEPTION OF THE DISEASE PRIOR TO MILITARY SERVICE.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR, UNITED STATES VETERANS' BUREAU, JULY 24, 1925:

I HAVE YOUR LETTER OF JUNE 25, 1925, AS FOLLOWS:

IN MY LETTER OF NOVEMBER 19, 1924, I SUBMITTED TO YOU THREE SPECIFIC QUESTIONS ARISING IN CONNECTION WITH VENEREAL DISEASES, QUESTION 2 BEING STATED AS FOLLOWS:

"IN A CASE WHERE A CLAIMANT IS SHOWN TO HAVE, OR, IF DECEASED, TO HAVE HAD, PRIOR TO JANUARY 1, 1925, A NEUROPSYCHIATRIC DISEASE OR OTHER DISABILITY OF THE CHARACTER ENUMERATED IN THE LAST PROVISO OF SECTION 200, AND NO NOTATION OF ANY DISABILITY WAS MADE AT THE TIME OF HIS ENLISTMENT, CAN THE GOVERNMENT IGNORE THE PRESUMPTION OF SOUND CONDITION AND ACCEPT EVIDENCE SHOWING THAT SUCH DISABILITY EXISTED PRIOR TO ENLISTMENT, WHETHER THE RESULT OF MISCONDUCT OR OTHERWISE, AND THUS REBUT THE PRESUMPTION OF SERVICE ORIGIN ESTABLISHED BY THE PROVISO MENTIONED?

IN YOUR DECISION RENDERED APRIL 3, 1925, YOU DID NOT ANSWER CATEGORICALLY THE ABOVE QUESTION BUT STATED THAT THE ANSWER THERETO WOULD BE FOUND BY APPLICATION OF THE GENERAL PRINCIPLES ANNOUNCED.

THE CASE OF MIKE C. CARPENTER IS ONE OF THE TYPE INCLUDED IN THIS QUESTION. THE CLAIMANT IS NOW SUFFERING FROM GENERAL PARESIS. THERE WAS NO NOTATION MADE OF THIS DISABILITY OR RELATED DEFECT, DISORDER OR INFIRMITY AT THE TIME THE CLAIMANT ENTERED SERVICE, DURING HIS SERVICE OR AT DISCHARGE. IN A REPORT MADE ON SEPTEMBER 5, 1923, MORE THAN FOUR YEARS AFTER THE CLAIMANT'S DISCHARGE, THE CLAIMANT GAVE A HISTORY OF HAVING A PRIMARY INFECTION IN 1912. IF THE GENERAL PRINCIPLES ANNOUNCED BY YOU APPLIED TO THE INSTANT CASE PRECLUDE THIS BUREAU FROM CONSIDERING EVIDENCE THAT THE DISABILITY EXISTED PRIOR TO ENLISTMENT FOR THE PURPOSE OF REBUTTING THE PRESUMPTION OF SERVICE CONNECTION CREATED BY THE PROVISO OF SECTION 200, WORLD WAR VETERANS' ACT, FOR THE N.P. CONDITION, THE RESULT IS THAT IN THIS AND A LARGE NUMBER OF LIKE CASES COMPENSATION WILL BE PAID NOTWITHSTANDING THE FACT THAT THE RECORDS CONTAIN EVIDENCE ESTABLISHING BEYOND THE SHADOW OF A DOUBT THAT THE DISABILITY WAS NOT DUE TO SERVICE. ALSO IT WILL PRECLUDE THOSE WHO BY GOING BEHIND THEIR ENLISTMENT COULD ESTABLISH INNOCENT CONTRACTION OF THE DISABILITY.

IT IS THEREFORE REQUESTED THAT THE QUESTION REFERRED TO ABOVE BE SPECIFICALLY ANSWERED.

QUESTION 2 IN YOUR SUBMISSION OF NOVEMBER 19, 1924, QUOTED IN YOUR PRESENT SUBMISSION, WAS UNDERSTOOD BY THIS OFFICE AS RELATING EXCLUSIVELY TO VENEREAL DISEASES OR RESULTING DISABILITIES ON THE BASIS OF WHICH THE DECISION OF APRIL 3, 1925, WAS RENDERED WHEREIN FOUR GENERAL RULES WERE ANNOUNCED. ON THAT BASIS THE QUESTION WOULD BE SUFFICIENTLY ANSWERED BY APPLICATION OF THE FIRST GENERAL RULE. SEPARATED FROM THE REMAINDER OF THE FORMER SUBMISSION, IT WOULD APPEAR THAT THE QUESTION RELATES TO DISEASES OR DISABILITIES ENUMERATED IN THE LAST PROVISO OF SECTION 200 OF THE WORLD WAR VETERANS' ACT "WHETHER THE RESULT OF MISCONDUCT OR OTHERWISE.' THE LAST PROVISO OF SECTION 200 OF THE WORLD WAR VETERANS' ACT AS AMENDED BY SECTION 6 OF THE ACT OF MARCH 4, 1925, 43 STAT. 1305, IS AS FOLLOWS:

* * * PROVIDED, THAT AN EX-SERVICE MAN WHO IS SHOWN TO HAVE OR, IF DECEASED, TO HAVE HAD, PRIOR TO JANUARY 1, 1925, NEUROPSYCHIATRIC DISEASE, AN ACTIVE TUBERCULOSIS DISEASE, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMOEBIC DYSENTERY DEVELOPING A 10 PERCENTUM DEGREE OF DISABILITY OR MORE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (4) OF SECTION 202 OF THIS ACT SHALL BE PRESUMED TO HAVE ACQUIRED HIS DISABILITY IN SUCH SERVICE BETWEEN APRIL 6, 1917, AND JULY 2, 1921, OR TO HAVE SUFFERED AN AGGRAVATION OF A PREEXISTING NEUROPSYCHIATRIC DISEASE, TUBERCULOSIS, PARALYSIS AGITANS, ENCEPHALITIS LETHARGICA, OR AMOEBIC DYSENTERY IN SUCH SERVICE BETWEEN SAID DATES, AND SAID PRESUMPTION SHALL BE CONCLUSIVE IN CASES OF ACTIVE TUBERCULOUS DISEASE, BUT IN ALL OTHER CASES SAID PRESUMPTION SHALL BE REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE; BUT NOTHING IN THIS PROVISO SHALL BE CONSTRUED TO PREVENT A CLAIMANT FROM RECEIVING THE BENEFITS OF COMPENSATION AND MEDICAL CARE AND TREATMENT FOR A DISABILITY DUE TO THESE DISEASES OF MORE THAN 10 PERCENTUM DEGREE (IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION (4) SECTION 202 OF THIS ACT) ON OR SUBSEQUENT TO JANUARY 1, 1925, IF THE FACTS IN THE CASE SUBSTANTIATE HIS CLAIM.

THIS PROVISO STANDING ALONE CREATES A PRIMA FACIE PRESUMPTION AS TO TIME OF INCURRENCE OF ALL THE ENUMERATED DISEASES OR DISABILITIES. SAID PRESUMPTION IS REBUTTABLE BY CLEAR AND CONVINCING EVIDENCE, EXCEPT IN CASES OF ACTIVE TUBERCULOSIS. AS TO ACTIVE TUBERCULOSIS, THE PRESUMPTION IS CONCLUSIVE AS TO TIME OF INCURRENCE. 4 COMP. GEN. 828. SUCH PRESUMPTION IS FOR CONSIDERATION AND APPLICATION ONLY WHERE THE CLAIM FOR DISABILITY COMPENSATION IS NOT CONTROLLED BY AND FOR DISPOSITION UNDER THE CONCLUSIVE PRESUMPTION OF SOUNDNESS UPON ENTRANCE INTO THE SERVICE CREATED BY THE FIRST PROVISO OF THE SECTION. IN OTHER WORDS, THE SECOND PROVISO, HEREIN QUOTED, WAS NOT INTENDED AS A RESTRICTION ON THE FIRST PROVISO BUT AS CONFERRING AN ADDITIONAL RIGHT IN FAVOR OF THE BENEFICIARY. WITH RESPECT TO THE DISEASES OTHER THAN ACTIVE TUBERCULOSIS MENTIONED IN THE PROVISO HEREINBEFORE QUOTED, THE BURDEN OF PROOF IS ON THE GOVERNMENT TO SHOW THAT THE DISEASE OR DISABILITY WAS NOT INCURRED DURING THE PERIOD BETWEEN APRIL 6, 1917, AND JULY 2, 1921. IF THE DISABILITY IS OF SUCH A CHARACTER AS TO INDICATE THAT IT RESULTED FROM INFECTION OF A VENEREAL DISEASE, RULE (1), ANNOUNCED IN THE DECISION OF APRIL 3, 1925, IS FOR APPLICATION. THAT IS TO SAY, COMPENSATION WOULD BE PAYABLE FOR THE ENUMERATED DISEASE OR DISABILITY ONLY---

WHERE THE CLAIMANT AFFIRMATIVELY ESTABLISHES THE FACT THAT THE DISEASE OR DISABILITY RESULTING THEREFROM, NOT PROPERLY NOTED OF RECORD AT OR PRIOR TO THE INCEPTION OF ACTIVE SERVICE, WAS INCURRED DURING THE PERIOD OF MILITARY OR NAVAL SERVICE INNOCENTLY AND NOT THE RESULT OF HIS OWN WILLFUL MISCONDUCT.

IF NO ELEMENT OF MISCONDUCT IS INVOLVED AND, THEREFORE, THE CLAIMANT IS NOT REQUIRED TO REBUT EVIDENCE OF MISCONDUCT IN THE CONSIDERATION OF HIS CLAIM, AND THE CONDITIONS ARE SUCH AS TO CREATE THE FIRST STATUTORY CONCLUSIVE PRESUMPTION OF SOUNDNESS UPON ENTRANCE INTO THE SERVICE, AND ALSO TO CREATE THE PRIMA FACIE PRESUMPTION OF SERVICE ORIGIN UNDER THE SECOND PROVISO OF SECTION 200, THE GOVERNMENT MAY NOT IGNORE THE CONCLUSIVE PRESUMPTION OF SOUNDNESS CREATED BY THE FIRST PROVISO OF THE STATUTE AND ACCEPT EVIDENCE SHOWING THAT SUCH DISEASE OR DISABILITY EXISTED PRIOR TO ENLISTMENT. IN THE CASE OF MIKE C. CARPENTER YOU DO NOT STATE DEFINITELY WHETHER THERE IS OR IS NOT INVOLVED THE ELEMENT OF MISCONDUCT. IT IS EVIDENT, HOWEVER, FROM YOUR ENTIRE STATEMENT THAT MISCONDUCT IS INVOLVED. IF GENERAL PARESIS RESULTED FROM A VENEREAL DISEASE, THE RECORD EVIDENCE OF PRIMARY INFECTION IN 1912 WOULD PRECLUDE THE CLAIMANT FROM ESTABLISHING HIS CLAIM AS REQUIRED UNDER RULE (1), ANNOUNCED IN DECISION OF APRIL 3, 1925.