ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 30 MARCH 31, 1931.

*Subject: Effect of forfeiture of rights, claims, and benefits under Title II of the World War Veterans' Act, 1924, as amended, upon the claimant's right to disability allowance.

ADMINISTRATOR'S DECISION, VETERANS ADMINISTRATION, NO. 31 MARCH 31, 1931.

Subject: Section 305, World War Veterans' Act, 1924, as amended. Over

payment.

QUESTION PRESENTED: Whether section 305, World War Veterans' Act, 1924, as amended, may apply to prevent the lapse of insurance where the increased compensation on a retroactive award is subject to offset an indebtedness between the insured and the United States because of an overpayment of vocational training allowance?

FACTS: The veteran while in military service applied for and was granted $10,000 term insurance; he was discharged on May 19, 1919, and shortly thereafter allowed his insurance to lapse. He filed claim for compensation in May 1919. He was rated temporarily totally disabled from discharge and disability compensation was awarded on that basis and paid to December 14, 1919, when he entered vocational training under section 2 and drew the usual training allowance of $100 monthly plus an additional sum for a dependent wife. He received this additional allowance through February 15, 1922, when he was returned to the compensation roll and received various amounts up to the date of death on March 9, 1930. After his death it was discovered that his wife had died March 29, 1920, so that the additional money he received between March 29, 1920, and February 15, 1922, $788.67, is regarded as an overpayment. The veteran had remarried on December 1, 1923, and when he died, was survived by his widow and one child. Adjusted compensation has been awarded to the widow in the sum of $1,323.93 and death compensation is being paid to the widow and child at the rate of $40 per month. The veteran's disability has been rated as permanent and total from December 24, 1925, and there is available to save insurance under section 305 of the World War Veterans' Act $581.40, raising the question whether this amount can be used to save all or a portion of the lapsed term insurance irrespective of his indebtedness to the Government, or whether it must be used to offset the overpayment of vocational training pay. The amount of lapsed term

insurance which might be revived through the application of the uncollected compensation is computed as $9,384.60. It further appears that when the veteran remarried on December 1, 1923, he made no claim for additional compensation on account of the second wife until December 1925. In January, 1926, the Bureau asked him, in view of the fact that the record apparently indicated a prior marriage, to clear up the discrepancy, and on January 13, 1926, the veteran claimed that he had given notice of the death of his first wife through a coordinator at the institution where the veteran was taking vocational training "on or near March 29, 1921." The veteran further claimed that he gave this information as to the death of his first wife to the person who "was taking charge of us boys while at school." The identity of the person to whom the notice was given has not been clearly established and it has been impossible to locate her.

COMMENT: The overpayment of the vocational training allowance through the failure to notify the proper authorities of the death of the first wife was prior to June 7, 1924, which brought into the World War Veterans' Act section 28 and which carried forward as section 22 earlier provisions of the War Risk Insurance Act dealing with the satisfaction of claims which the United States might have against beneficiaries of the War Risk Insurance Act. The Comptroller of the Treasury, (27 Comp. Dec. 212, Aug. 27, 1920), held not only that any overpayments of War Risk compensation to trainees of the Federal Board for Vocational Education were subject to recovery but held also that there was no authority on the part of the Federal Board for Vocational Education to remit or cancel debts due the Government or to waive or postpone their collection. This overpayment was one due the United States and was subject to collection irrespective of the provisions of the Federal Vocational Training Act, so-called, or of the War Risk Insurance Act as it then stood and as later amended, or of the World War Veterans' Act as originally enacted and as amended. This veteran was not entitled to the uncollected compensation in question because he had in fact collected all of the compensation to which he was rightfully entitled as he had previously been overpaid vocational training allowance to a greater amount, the overpayment arising through his failure promptly and completely to give notice of the death of his first wife. By this failure he created an indebtedness between himself and the United States which is the duty of the Government to recover out of the first funds available. The veteran, therefore, was entitled to compensation and having knowingly received it in the form of an overpayment of vocational training allowance there can be

no ground of complaint if the amount of compensation technically uncollected should be applied to offset overpayments which this veteran had already wrongfully received.

The theory of section 305 of the World War Veterans' Act and the theory underlying its predecessor, the third proviso of section. 408 of the War Risk Insurance Act, is that if the Government had not been in default in the payment of compensation the veteran would have had funds with which to have met insurance premiums. The whole scheme of the application of uncollected compensation to save insurance has rested from its inception upon the well recognized principle of equity that "equity regards that as done which should have been done". The basis of the third proviso to section 408, War Risk Insurance Act, and also of section 305, World War Veterans' Act, is essentially equitable and equity is mutual requiring that he who seeks equity must first do equity and further, to quote a familiar maxim, "one must come into equity with clean hands." To seek the benefits of either the third proviso of section 408, War Risk Insurance Act, or section 305, World War Veterans' Act, a veteran cannot take advantage of his own wrong.

HELD: For the purposes of section 305 compensation is not due in a case where the beneficiary has already collected in excess of the allowance authorized for him under the law, and section 305 will not apply to prevent the lapse of insurance where the increased compensation of a retroactive award is subject to an indebtedness between the insured and the United States because of an overpayment of vocational training allowance. (Opinions of the General Counsel, United States Veterans' Bureau, dated Dec. 6, 1930, and Jan. 6, 1931, XC-211,873.)

The foregoing decision is hereby promulgated for observance by all officers and employees of the Veterans' Administration.

FRANK T. HINES,

Administrator of Veterans' Affairs.

ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 32

MARCH 31, 1931.

*Subject: Payment of additional allowance for a nurse or an attendant to recipients of disability allowance.

ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 33 MARCH 31, 1931.

Subject: Necessity for specific application for additional allowance for a nurse or attendant under section 202 (5), World War Veterans' Act, as amended July 3, 1930.

QUESTION PRESENTED: May the additional allowance for a nurse or attendant under section 202 (5), World War Veterans' Act, as amended July 3, 1930, be paid without specific claim being filed therefor, in view of the recent amendments to section 202 (5) and section 212 of the World War Veterans' Act?

COMMENT: Under the well established precedents of the Bureau, the additional allowance for a nurse or attendant provided by section 202 (5) is increased compensation, and as such is payable only for a period of six months prior to the date of claim therefor.

The only change made in the amendment to this section, as approved July 3, 1930, is the deletion of the word "constant,” thereby removing the necessity for showing the constant need of a nurse or attendant where claim for nurse or attendant allowance is made. (See Senate Report No. 1128, 71st Cong., 2d Sess., p. 6.) Section 212, supra, was amended on July 3, 1930, by adding the following provision:

Provided further, That an application for compensation under the War Risk Insurance Act, as amended, shall be deemed to be a claim for compensation under this act, and an application for compensation under the provisions of this act shall be deemed to be a claim for compensation under all subsequent amendments to said act, this proviso to be effective as of June 7, 1924.

The purpose of the amendment to section 212 was to overcome the ruling of the Comptroller General to the effect that a claim which has been disallowed under an earlier statute can not be reviewed and paid under a subsequent amendment bringing the case within the purview of the law without the filing of a claim. (See Senate Report No. 1128, 71st Cong., 2d Sess., p. 8.)

It is a well settled rule of statutory construction that an original act and amendments to it should be read and construed as one act. (Black on Interpretation of Laws, p. 574.)

A careful reading of the complete act, including the amendments to sections 202 (5) and 212, approved July 3, 1930, discloses that there is no change with regard to the amount payable for a nurse or attendant, nor to the manner of payment. Section 210 still provides that increased compensation is payable only for a period of 6 months prior to the date of claim therefor.

Applying the rule of statutory construction above referred to, it is believed that these amendments to the World War Veterans'

Act do not necessitate a change in the precedents on the question of the necessity for claim for the additional allowance for a nurse or attendant. However, in those cases where the additional allowance was denied because "constant" need was not shown, the additional allowance may be granted from July 3, 1930, without an additional claim for these benefits.

HELD: The amount payable under section 202 (5) of the World War Veterans' Act, as amended July 3, 1930, may not be awarded without a specific claim therefor, except where the claim for the additional allowance for a nurse or attendant was denied because constant need was not shown. (Opinion of the Acting General Counsel, U. S. Veterans' Bureau, dated Oct. 4, 1930, approved by the Director, U. S. Veterans' Bureau, Oct. 15, 1930.)

The foregoing decision is hereby promulgated for observance by all officers and employees of the Veterans' Administration.

FRANK T. HINES,

Administrator of Veterans' Affairs.

ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 34 MARCH 31, 1931.

*Subject: Application of section 202 (7), World War Veterans' Act, as amended July 3, 1930, insofar as it refers to discontinuance of compensation, when the estate exceeds $3,000.

ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 35 APRIL 3, 1931.

*Subject: Disability allowance. Right to elect to receive disability allowance in lieu of disability compensation.

ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 36 APRIL 3, 1931.

*Subject: Interpretation of provisions of section 200, paragraph 2, of the World War Veterans' Act, as amended.

ADMINISTRATOR'S DECISION, VETERANS' ADMINISTRATION, NO. 37 APRIL 8, 1931.

*Subject: Eligibility of a civilian employee under contract for hospitalization under Section 202 (10) World War Veterans' Act, 1924, as amended July 3, 1930, who served overseas as a veterinary surgeon or veterinarian in the Quartermaster's Department of the Army during the SpanishAmerican War.