Executive Order 6230—Veterans Regulation No. 2(a)

EFFECTIVE DATES OF AWARDS OF DISABILITY AND DEATH PENSIONS; PROVISIONS FOR FILING CLAIMS; REVIEW OF PRESUMPTIVE CLAIMS BY SPECIAL REVIEW BOARDS Whereas , Section 9, Title I, of Public No. 2, 73d Congress, entitled "An Act To maintain the credit of the United States Government", provides: "Claims for benefits under this title shall be filed with the Veterans' Administration under such regulations, including provisions for hearing, determination, and administrative review, as the President may approve, and payments shall not be made for any period prior to date of application. When a claim shall be finally disallowed under this title and the regulations issued thereunder, it may not thereafter be reopened or allowed." And Whereas , Paragraphs 1 and 3 of Section 20, Public No. 78, 73d Congress, entitled "An Act Making appropriations for the Executive Office and sundry independent executive bureaus, boards, commissions, and offices, for the fiscal year ending June 30, 1934, and for other purposes", provides: "The President is hereby authorized under the provisions of Public Law Numbered 2, Seventy-third Congress, to establish such number of special boards (the majority of the members of which were not in the employ of the Veterans' Administration at the date of enactment of this Act), as he may deem necessary to review all claims (where the veteran entered service prior to November 11, 1918, and whose disability is not the result of his own misconduct), in which presumptive service connection has heretofore been granted under the World War Veterans' Act, 1924, as amended, wherein payments were being made on March 20, 1933, and which are held not service connected under the regulations issued pursuant to Public Law Numbered 2, Seventy-third Congress. Members of such boards may be appointed without regard to the Civil Service laws and regulations, and their compensation fixed without regard to the Classification Act of 1923, as amended. Such special boards shall determine, on all available evidence, the question whether service connection shall be granted under the provisions of the regulations issued pursuant to Public Law Numbered 2, Seventy-third Congress (notwithstanding the evidence may not clearly demonstrate the existence of the disease or any specific clinical findings within the terms of or period prescribed by regulation 1, part 1, subparagraph (c), or instruction numbered 2, regulation numbered 1, issued under Public Law Numbered 2, Seventy-third Congress), and shall in their decisions resolve all reasonable doubts in favor of the veteran, the burden of proof in such cases being on the Government. "Notwithstanding the provisions of Public Law Numbered 2, Seventy-third Congress, the decisions of such special boards shall be final in such cases, subject to such appellate procedure as the President may prescribe, and, except for fraud, mistake, or misrepresentation, 75 per centum of the payments being made on March 20, 1933, therein shall continue to October 31, 1933, or the date of special board decision, whichever is the earlier date: Provided, That where any case is pending before any one of the special boards on October 31, 1933, the President may provide for extending the time of payment until decision can be rendered. The President shall prescribe such rules governing reviews and hearings, as may be deemed advisable. Payment of salaries and expenses of such boards and personnel assigned thereto shall be paid out of and in accordance with appropriations for the Veterans' Administration." Now, Therefore , by virtue of authority vested in me by said laws, the following regulation is hereby promulgated, canceling Veterans Regulation No. 2 and substituting Veterans Regulation No. 2(a) to read as follows: PART I EFFECTIVE DATES OF AWARDS OF DISABILITY AND DEATH PENSIONS AND PROVISIONS FOR FILING CLAIMS. I. The effective date of an award of pension shall be as follows: (a) The effective date of an award of pension shall be fixed in accordance with the facts found, except that: (1) No award of disability or death pension shall be effective prior to the date of the veteran's separation from service, date of the veteran's death, date of the happening of the contingency upon which disability or death pension is allowed, or the date of receipt of application therefor, whichever is the Inter date. (2) In the event the claimant's application is not complete at the time of original submission, the Veterans' Administration will notify the claimant of the evidence necessary to complete the application and if such evidence is not received within six months from the date of request therefor, pension may not be paid by virtue of that application. II. The effective date of an award of increased pension shall be fixed in accordance with the facts found, except that: (a) No award of increased pension may be elective for any period prior to the date of receipt of the evidence showing entitlement thereto. (b) For the purpose of this Regulation, increased pension shall be taken to mean any award of pension, amending, reopening, or supplementing & previous award, authorizing any payments not theretofore authorized to the particular individual involved. III. The effective date of reduction or discontinuance of compensation, disability allowance and/or pension shall be fixed in accordance with the facts found, except that: (a) Reductions and discontinuances by reason of Public No. 2, 73d Congress, of benefits being paid, on the date of approval thereof, pursuant to the laws in effect prior to the date of enactment of Public No. 2, 73d Congress, shall, except as provided for in Section 20, Paragraph 3 of Public No. 78, 73d Congress, and Veterans Regulation No. 12, be June 30, 1933, the last day of the third calendar month after the date of enactment of Public No. 2, 73d Congress, unless sooner reduced or discontinued under the provisions of such prior law. (b) Where disability or death pension has been awarded pursuant to the provisions of Public No. 2, 73d Congress, and a reduction or discontinuance is thereafter effected as to rates, such reduction or discontinuance shall be effective the last day of the month in which the reduction or discontinuance is approved. (c) Reductions or discontinuances because of the death of a disabled person receiving a pension shall be effective as of the date of death. (d) Discontinuance of a pension because of remarriage or death of a widow shall be effective the date next preceding the date of her remarriage, or upon the date of her death. (e) Discontinuance or reduction of a pension to or because of a child reaching the age of eighteen years, or being married, or dying, shall be effective the date next preceding the eighteenth birthday or next preceding the date of marriage or will be effective upon the date of death. (f) Where there is fraud shown to have been committed by the person receiving pension or with his or her knowledge the effective date of discontinuance shall be as of the effective date of the award to such person. (g) Discontinuance of a pension because of the receipt of active service or retirement pay shall be effective as of the date next preceding the date of commencement of such pay. IV. (a) Pension payable to a widow shall continue until death or remarriage, provided, however, that where pension is properly discontinued by reason of remarriage, it shall not thereafter be recommenced. (b) Pension to a dependent mother or father shall continue during dependency until death or remarriage of the mother or father, whether the dependency arises prior or subsequent to the death of the veteran, except that no pension shall be payable to any mother or father where the dependency arises more than ten years subsequent to the death of the veteran. (c) Pension to or for a child shall continue only until the child's eighteenth birthday or marriage, or, if permanently and totally incapable of self-support, as outlined in Veterans Regulation No. 10(a), until the child's marriage or death, but only during the continuance of such permanent and total incapacity or until completion of education or training (but not after the child marries or reaches the age of twenty-one years, whichever is the earlier date), when the child is or may hereafter be pursuing a course of instruction at a school, college, academy, seminary, technical institute or university particularly designated by him and approved by the Administrator. V. Pension or emergency officers' retirement pay, not paid during the lifetime of the person entitled thereto, shall upon the death of such person be paid as follows: (a) Upon death of the veteran, first to the widow; second, if there is no widow, to his child or children under the age of eighteen years at his death; (b) upon death of the widow, to her children under the age of eighteen years at her death; (c) upon the death, prior to payment of all or any part of the apportioned amount, of an apportionee of a part of the veteran's pension or emergency officers' retirement pay, such apportioned amount not paid shall be payable to the veteran; (d) in all other cases no payment whatsoever of such pension or emergency officers' retirement pay shall be made or allowed except so much as may be necessary to reimburse the person who bore the expense of burial, provided, however, that no payment shall be made unless claim therefor be filed within one year from the date of the death of the person entitled and perfected by the submission of the necessary evidence within six months from the date of the request of the Veterans' Administration therefor. Such pension shall include only payments due and unpaid at the time of death under then existing ratings or decisions. VI. A specific claim on the form prescribed by the Administrator of Veterans' Affairs must be filed by a veteran, who is not already on the rolls of the Veterans' Administration, with the Veterans' Administration for benefits under Public No. 2, 73d Congress, involving disabilities and deaths resulting from injury or disease incurred or aggravated in line of duty in war-time or peace-time service and disabilities and deaths not incurred in service. PART II APPEALS I. There is hereby created in the Veterans' Administration a Board of Veterans' Appeals under the administrative control and supervision of & Chairman directly responsible to the Administrator of Veterans' Affairs. The Board shall be composed of the Chairman, a Vice Chairman and not to exceed fifteen (15) associate members and such other professional, administrative, clerical and stenographic personnel as are necessary in conducting hearings and in the consideration and disposition of appeals properly before such Board in accordance with the instructions herein provided. Members of the Board, including the Chairman and the Vice Chairman, shall be appointed by the Administrator of Veterans' Affairs with the approval of the President. (a) The Chairman may from time to time divide the Board into sections of three members, assign the members of the Board thereto and designate the chief thereof. If a section as a result of a vacancy or absence or inability of a member assigned thereto to serve thereon is composed of a number of members less than designated for the section, the Chairman may assign other members to the section or direct the section to proceed with the transaction of business without awaiting any additional assignment of members thereto. A hearing docket shall be maintained and formal recorded hearings shall be held by such associate member or members as the Chairman may designate, the associate member or members being of the section which will make final determination in the claim. A section of the Board shall make a determination on any proceeding instituted before the Board and on any motion in connection therewith assigned to such section by the Chairman and shall make a report of any such determination, which report shall constitute its final disposition of the proceeding. (b) The determination of the section, when unanimously concurred in by the members of the section, shall be the final determination of the Board except that such Board on its own motion may correct an obvious error in the record, or may upon the basis of additional official information from the War or Navy Department reach a contrary conclusion. In the event of a disagreement among the members of the section the concurrence of the Chairman with the majority of members of such section shall constitute the final determination of the Board, subject to correction only on a showing of obvious error, or when in the opinion of the Board, a contrary conclusion is justified on the basis of additional official information furnished by the War or Navy Department. II. All questions on claims involving benefits under the laws administered by the Veterans' Administration shall be subject to one review on appeal to the Administrator of Veterans' Affairs, decisions in such cases to be made by the Board of Veterans' Appeals. Jurisdiction to render final decisions on questions so reviewed on appeal shall vest in the Board of Veterans' Appeals in accordance with the provisions of Paragraph 1. When a claim shall be disallowed by the Board of Veterans' Appeals it may not thereafter be reopened and allowed and no claim based upon the same factual basis shall be considered, except that where subsequent to such disallowance new and material evidence in the form of official reports from the proper Service Department is secured, the Board of Veterans' Appeals may authorize the reopening of the claim and review of the former decision. The Board of Veterans' Appeals shall in its decisions he bound by the Regulations of the Veterans' Administration, instructions of the Administrator of Veterans' Affairs, and the precedent opinions of the Solicitor. III. Applications for review on appeal to the Administrator of Veterans' Affairs shall be filed (excepting in those claims involving simultaneously contested claims, (see paragraph 9(a) hereof)) within six months from the date of mailing of notice of the result of initial review or determination or from July 1, 1933, whichever is the later date. Applications for review must be filed with the activity which entered the denial. If no application for review on appeal is filed in accordance with this regulation within the time limit specified, the action taken on initial review or determination shall become final and the claim will not thereafter be reopened or allowed, except where subsequent to such disallowance new and material evidence in the form of official reports from the proper service department is secured the Administrator of Veterans' Affairs may authorize the reopening of the claim and review of the former decision. If application for review on appeal is entered within the time limit specified by regulations, a reasonable time thereafter will be allowed, if requested, for the perfection of the appeal and the presentation of additional evidence before final determination or decision is made. IV. Exclusive jurisdiction for the review of emergency officers' retirement claims covered by Section 10, Public No. 2, 73d Congress, shall be vested in such persons as shall be designated by the Administrator of Veterans' Affairs. Following initial determination the same rules and regulations governing applications for review to the Administrator of Veterans' Affairs as provided in this Regulation will be for application. V. Application for review on appeal may be made in writing by the claimant, his legal guardian, or such accredited representative, or authorized agent, as shall be selected by him. Not more than one recognized organization or authorized agent will be recognized at any one time in the prosecution of a claim. VI. Application for review on appeal may be made by any member of the Special Review Boards created by Part III of this Regulation and by such officials of the Veterans' Administration as may be designated by the Administrator of Veterans' Affairs at any time within the time limit provided by this Regulation. An application for review on appeal entered by a designated official of the Veterans' Administration shall not operate to deprive the claimant of the right of review on appeal as provided in this Regulation. VII. In each application for review on appeal the name and service of the veteran on account of whose service the claim is based must be stated, together with the number of the claim and the date of the action from which the appeal is taken. The application must clearly identify the benefit sought. VIII. Each application for review on appeal should contain specific assignments of the alleged mistake of fact or error of law in the adjudication of said claim, and any application for review on appeal insufficient in this respect may be dismissed. XI. All cases received pursuant to application for review on appeal shall be considered and decided in regular order according to their places upon the docket, unless for cause shown a case may be advanced on motion for earlier consideration and determination. Every such motion shall set forth succinctly the grounds upon which it is based. No such motion will be granted except in cases involving interpretation of law of general application affecting other claims, or for other sufficient cause shown. X. (a) In simultaneously contested claims where one is allowed and one rejected, the time allowed for the filing of an application for review on appeal shall be sixty days from the date of mailing notice of the original action to the claimant to whom the action is adverse. In such cases the activity concerned shall promptly notify all parties in interest of the original action taken, expressly inviting attention to the fact that an application for review on appeal will not be entertained unless filed within the period of sixty days herein prescribed. Such notices shall be forwarded to the parties in interest to the last known address of record. (b) Upon the filing of an application for review on appeal in simultaneously contested claims, all parties other than the applicant for review on appeal whose interests may be adversely affected by the decision, shall be notified of the substance thereof and allowed thirty days from date of mailing of such notice within which to file brief or argument in answer thereto before the record is forwarded on application for review on appeal. The notice herein referred to shall be forwarded to the last known address of record of the parties whose interest may be adversely affected, and such action shall constitute sufficient evidence of notice. XI. An application for review on appeal shall not be entertained unless it is in conformity with paragraphs 1 to 10 inclusive. PART III REVIEW OF PRESUMPTIVE CLAIMS BY SPECIAL REVIEW BOARDS I. For the purpose of conducting the review of those claims which have heretofore been service connected by virtue of statutory presumptions as comprehended in Section 20 of Public No. 7S, 73d Congress, there are hereby temporarily created such Special Review Boards as may be necessary, to he located in the regional areas of the Veterans' Administration as determined upon by the Administrator of Veterans' Affairs. The Special Review Boards shall function in accordance with this regulation and such special instructions as may be issued to them. II. These Boards will each be composed of five members, three of whom shall be selected by the President from personnel who were not in the employ of the Veterans' Administration on the date of the approval of Public No. 78, 73d Congress, and two employees shall be designated by the Administrator of Veterans' Affairs from the personnel of the Veterans' Administration. The official stations of the respective Boards will be in the Veterans' Administration Facility or Office to which they are assigned and the Manager of such facility or Office will furnish such space, supplies, clerical and stenographic assistance as may be necessary for the proper operation of the Boards, such clerical and stenographic assistance to be furnished from the personnel now on the rolls of the Veterans' Administration Facility or Office concerned. III. The concurrence of any three members of a Special Review Board shall constitute the decision of such Board. IV. The Special Review Boards will grant hearings where indicated, such hearings to be without expense as to travel or per diem allowance to the Government. When requested in due time hearings will be arranged for claimants, their authorized representatives or qualified agents and notices will be dispatched indicating the hour and date on which the cases are to be heard. Claimant's representatives or agents will, however, be required to respond at the time and date set, otherwise the Board will proceed with the consideration and determination of the claim and no further arrangement as to hearing will be made. Claimants, their authorized representatives, agents or witnesses appearing before the Board for the purpose of presenting oral testimony will be duly sworn. V. The jurisdiction of the Special Review Boards shall be confined to a determination of questions of service connection in those cases which were heretofore service connected by reason of the statutory presumption of soundness at enlistment or by reason of the first proviso Section 300, War Risk Insurance Act, as amended, or by reason of the second proviso Section 200, World War Veterans' Act, 1924, as amended, and which are denied service connection as a result of the review of awarded cases under the provisions of Public No. 2, 73d Congress, where the veteran had World War service as defined in Veterans Regulation No. 1(a), Part I, Paragraph 1(a). The Boards in their determinations will be guided by the following principles: (a) The Special Review Boards shall determine on all available evidence the question of whether service connection shall be granted under the provisions of Veterans Regulations issued pursuant to Public No. 2, 73d Congress, (notwithstanding the evidence may not clearly demonstrate the existence of the disease or any specific clinical findings within the terms of or period prescribed by Veterans Regulation No. 1(a), Part I, Paragraph 1(c), issued under Public No. 2, 73d Congress), and shall in their decisions resolve all reasonable doubts in favor of the veteran, the burden of proof in such cases being on the Government. The Special Review Boards shall be guided by the principles enunciated in Veterans Regulation No. 1(a), Part I. However, in any case where in view of the peculiar circumstances and in the exercise of sound judgment it is determined that the veteran is entitled to service connection an affirmative determination may be made even though literal adherence to such principles would prevent the granting of service connection. The Boards shall set forth briefly in their decisions the reasons for the conclusions reached. Rendition, by the Board, of a decision in any case shall terminate its jurisdiction in such case. (b) In their determinations the Special Review Boards will view the claim in the light of the circumstances under which the veteran served in the armed forces during the World War, giving particular consideration to service in the American Expeditionary Forces and the zone of hostilities, and on the whole evidence of record reach & determination without reference to prior determinations, which is proper under the circumstances of the individual case. (c) The Boards in resolving all reasonable doubts in favor of the claimant will not indulge in speculative theory in reaching their conclusion. The Boards will, however, give due consideration to lay evidence as well as medical evidence of record, bearing in mind that the evidence should be viewed in the light of the facts set forth rather than the conclusions stated and that the weight to be given the evidence must depend largely upon the knowledge and capacity of the individual giving the testimony concerning the subject or fact about which he testifies. (d) That provision of the law which placed the burden of proof on the Government in denying benefits will not be construed to mean that affirmative evidence only may be used as rebuttal evidence, but such rebuttal may also be predicated upon sound medical judgment, negative evidence of the War or Navy Department, or any other competent evidence available relating to the question at issue. VI. The procedure covering the operation of the Special Review Boards will be provided by the Administrator of Veterans' Affairs in an appropriate instruction issued pursuant to provisions of this regulation. VII. The provisions in this regulation covering the review of claims on appeal shall apply to the decisions of the Special Review Boards. VIII. Service connection granted by Special Review Boards will not thereafter be discontinued except in the event of an appeal, or for fraud, misrepresentation, or when it is found by the Administrator that such grant is clearly contrary to this regulation and instructions governing the operation of the Special Review Boards. FRANKLIN D ROOSEVELT The White House, July 28, 1933.