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with eight children currently is paid $324 monthly ($121 plus 7 times $29) under 38 U.S.C. 322; whereas under the bill she would be paid $322 monthly ($147 plus 7 times $25).

Chapter 13 of title 38, United States Code (dependency and indemnity com. pensation), restates the substance of the Servicemen's and Veterans' Survivor Benefits Act (Public Law 881, 84th Cong., Aug. 1, 1956). This act established a new and modernized benefits program of dependency and indemnity compensation for survivors of veterans dying from service-connected causes on or after January 1, 1957, thus superseding the old death compensation program.

Survivors of veterans who died before January 1, 1957, who were entitled to death compensation may elect to receive the new benefits or may continue to receive death compensation. The authority to continue on the death compensation rolls was undoubtedly provided to preclude a reduction of monetary benefits which could have resulted in some instances if dependency and indemnity compensation was made the exclusive program. I see no justification for enhancing this advantage of the protected group.

Although an election to receive depenedency and indemnity compensation may be made at any time, once validly made it is irrevocable. It appears from the election provision that the law contemplated death compensation would become a declining program. We doubt that it was expected that such benefits would thereafter be increased or extended. Accordingly, I feel that enactment of the bill would be a distinct departure from the original concept of the dependency and indemnity compensation program.

It is estimated that the bill would benefit approximately 171,700 wartime cases and 7,200 peacetime cases—a total of 178,900 cases—the first year, at an additional cost for that year of approximately $23,649,000. It is believed that the additional cost will decrease for the next 4 years to approximately $16,500,000 in the fifth year.

In line with the foregoing, we do not believe the bill should receive favorable consideration.

The Bureau of the Budget advises that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely,

W.J. DRIVER, Administrator.

VETERANS' ADMINISTRATION,
OFFICE OF THE ADMINISTRATOR OF VETERANS' AFFAIRS,

Washington, D.C., April 22, 1965.
Hon. OLIN E. TEAGUE,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, D.C.

DEAR MR. CHAIRMAN: The following comments are submitted in response to your request for a report by the Veterans' Administration on H.R. 1508, 89th Congress.

The bill would liberalize outpatient dental treatment benefits by eliminating the present statutory requirement that benefits for noncompensable serviceconnected dental disabilities generally be afforded on a one-time completion basis.

Currently outpatient dental treatment is limited to the following dental conditions or disabilities: (1) Service connected and compensable in degree; (2) service connected but not compensable in degree if shown to have been in existence at time of discharge and if application for treatment is made within 1 years after discharge_except where a disqualify discharge or release has been corrected by competent authority, application may be made within 1 year after date of correction; (3) due to combat wounds or other service trauma or of a former prisoner of war; (4) associated with or aggravating disability from some other service-connected disease or injury; or (5) from which a veteran of the Spanish-American War or Indian wars is suffering.

Treatment of noncompensable service-connected dental conditions is limited by law to a one-time completion basis unless the services are unacceptable within the limitations of good professional standards. However, the one-time treatment provision does not apply to former prisoners of war, to those whose dental disabilities are due to combat wounds or other service trauma, or to Spanish-American War and Indian wars veterans.

These limitations on dental treatment came into the law permanently on June 16, 1955, with the passage of Public Law 83, 84th Congress. Previously, however, similar provisions had been incorporated partly in the Independent Offices Appropriation Acts for 1954 and 1955, and partly in Veterans' Administration regulations.

The whole subject of outpatient dental treatment has been given very careful consideration. We are of the opinion that the statutory restriction of treatment to a one-time completion basis in noncompensable service-connected cases reflects a sound and proper evaluation of the Government's obligations in its dental program for veterans.

The bill, if enacted, would again make the Veterans' Administration responsible for providing lifetime dental treatment for noncompensable service-connected conditions with recurring episodes of treatment. This would continue to be subject to the requirement that the initial application must be made within 1 years after discharge.

It is estimated that the enacment of H.R. 1508 would require an addiional expenditure, if treatment is provided on a fee basis, approximating $153 million in the first year. The estimated cost for each of the following 4 years will range from approximately $29.5 million up to approximately $31.4 million in the fourth year.

I am unable to recommend favorable consideration of this bill by your committee.

We are advised by the Bureau of the Budget that there is no objection to the presentation of this report from the standpoint of the administration's program. Sincerely,

W. J. DRIVER, Administrator.

VETERAN'S ADMINISTRATION,
OFFICE OF THE ADMINISTRATOR OF VETERAN'S AFFAIRS,

Washington, D.C., April 23, 1965,
Hon OLIN E. TEAGUE,
Chairman, Committee on Veteran's Affairs,
House of Representatives,
Washington, D.C.

DEAR MR. CHAIRMAN: The following comments are submitted, as requested, on H.R. 5319, 89th Congress.

Existing law (38 U.S.C. 3104 (a)) prohibits, with a limited exception the concurrent payment to any person based on his own service of more than one award of pension, compensation, or emergency officers', Regular, or Reserve retirement pay. The exception permits any person who is entitled to both retirement pay and compensation or pension to waive so much of his retirement pay as equals the compensation or pension for which he is eligible and thereafter to receive such compensation or pension in addition to the remaining portion of his retirement pay.

The subject bill, if enacted, would authorize the payment of disability compensation for any service-connected disability 30 percent or more disabling concurrently with emergency officers', Regular or Reserve retirement pay, except that such concurrent payments would not be permitted if the two benefits are based on the same disability.

A prohibition against dual awards has been a part of the law for many years. The act of March 3, 1891 (26 Stat. 1082), prohibited the payment of pensions to persons on the atcive or retired list of the Army, Navy, or Marine Corps. If a veteran is entitled to benefits from both sources, he may of course elect the one which is greater in amount. The policy against the concurrent payment of more than one benefit is also reflected in another provision of 38 U.S.C. 3104 which provides that pension compensation, or retirement pay on account of a person's service shall not be paid for any period for which he receives active service pay, and, as noted above, this section also bars the payment of compensation for serviceconnected disabilities concurrently with pension for non-service-connected disabilities.

As noted above, the policy against concurrent payments has been relaxed to the extent of authorizing a partial waiver so that full compensation or pension can be drawn concurrently with part of the retirement pay to which a veteran is eligible. This does not involve any duplicate amounts since the total waiver cannot exceed the gross amount of the retirement pay. The principal advantage to the veteran of waiving a portion of his retirement pay and receiving an equal amount of compensation or pension lies in the fact that compensation and pen

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sion payments are tax exempt (38 U.S.C. 3101), whereas retirement pay based on length of service or attained age is not.

H.R. 5319, if enacted, would probably not affect the vast majority of retirees. The two principal reasons for military retirement are disability and length of service. Of those servicemen retired for disability, few could claim a serviceconnected disease or injury 30 percent or more disabling which had not already been taken into consideration by the service department in connection with their retirement. And, since it is generally to the financial advantage of service personnel to retire for disability rather than longevity, it is believed that not too many of those retired for longevity would be likely to have had a service-connected disability 30 percent or more disabling.

The proposal would benefit three principal classes of retirees. The first would be those persons who had a service-connected disability of the requisite degree at time of retirement but for some reason-perhaps because the service department concerned determined that the disability did not render the individual unfit to perform the duties of his grade or office-were actually retired for longevity. Persons in the second class are those individuals who may hereafter become eligible to retire because of both disability and length of service. At present it is to their financial advantage to accept disability retirement for two reasons. First, the amount of disability retirement pay exceeds the amount of longevity retirement pay payable for less than 30 years' service; and second, disability retirement pay in generally exempt from taxation as income. The enactment of the subject bill would make it financially more advantageous for such a retiree to accept longevity retirement if the amount of disability compensation payable for his service-connected disabilities plus his longevity retirement pay, less the income tax payable on that retirement pay, exceeds the amount of disability retirement pay he would be eligible to receive.

The third group that would be benefited by this proposal are those individuals who are retired for either disability or longevity and who first manifest a "chronic disease” or a “tropical disease" (as those terms are defined in 38 U.S.C. 301) following their retirement and who accordingly can qualify for Veterans' Administration disability compensation under 38 U.S.C. 312 or 333. Section 312, with respect to veterans who served at least 90 days during a period of war, provides that a chronic disease (other than active tuberculosis, multiple sclerosis, and Hansen's disease) or a tropical disease becoming manifest to a degree of 10 percent or more within 1 year from the date of separation from such active service, all types of active tuberculosis and Hansen's disease becoming manifest to a degree of 10 percent or more within 3 years of the date of such separation, and multiple sclerosis becoming manifest to a degree of 10 percent or more within 7 years of the date of such separation shall, subject to rebuttal, be considered to have been incurred in or aggravated by such service. Under section 333, a 1-year tropical disease presumption is extended to veterans who served during peacetime but it requires 6 months or more active military service.

As heretofore noted, the prohibition against the concurrent payment of disability compensation and retirement pay has been a part of the law for over 70 years. This policy apparently reflects the view that the pyramiding of these benefits to a veteran would exceed the Government's obligation to him. The Veterans' Administration is not aware of any cogent reasons for departing from this policy. Accordingly, we do not believe that H.R. 5319 should be favorably considered by your committee.

Since it is not possible to identify the cases to which this bill would apply, the Veterans' Administration is unable to furnish any estimate of the cost of the proposal, if enacted.

Advice has been received from the Bureau of the Budget that there is no objection to the presentation of this report and further that this legislative proposal would not be consistent with the administration's objectives. Sincerely,

W. J. DRIVER, Administrator.

APRIL 29, 1965.

Speaker of the House of Representatives,

Washington, D.C.

DEAR MR. SPEAKER: There is transmitted herewith a draft of a bill to equalize the rates of disability compensation payable to veterans of peacetime and wartime service, with the request that it be introduced in order that it may be considered for enactment.

erans.

Under existing law the monthly rates of compensation for disability incurred in or resulting from military service during peacetime (and the amounts of additional compensation payable for dependents of veterans disabled by peacetime service) are 80 percent of those authorized for comparable wartime service. The draft bill proposes to remove this disparity and thus authorize the same rates of compensation, and amounts of additional compensation, whether the service of the veteran concerned was during wartime or peacetime.

The general pension law of July 14, 1862, provided pension (now designated compensation) for service-connected disability or death and made no distinction between service in time of war and peacetime service. The amendment of October 6, 1917, to the War Risk Insurance Act was the first law which recognized a distinction for compensation purposes between peacetime and wartime service in that it established a new compensation program for reterans of World War I. This separate compensation program was restated and continued under the World War Veterans' Act, 1924. Meanwhile peacetime veterans were eligible -only for lesser compensation rates under the general pension law.

The so-called Economy Act (Public No. 2, 73d Cong., Mar. 20, 1933) repealed most of the then existing veterans' laws, including the World War Veterans' Act, 1924, and established certain broad guidelines for a new compensation program. Among such guidelines was a recognition of a distinction between wartime and peacetime service. The President was authorized to promulgate by Executive orders detailed provisions for eligibility. Under this authority Veterans Regulation 1(a) established basic rates of compensation with the peacetime rates generally 50 percent of the wartime rates. By 1939 (Public No. 257, 76th Cong.) this differential was narrowed to 75 percent, and in 1948 (Public Law 876, 80th Cong.) the peacetime rates were set at 80 percent of the wartime rates. They remain at that percentage level today.

This compensation rate differential has apparently been maintained in view of the historical policy running through several benefit programs that war veterans should be accorded preferential treatment. Such policy is also reflected in more liberal criteria for establishing service connection applicable to war vet

(See the presumptions of sound condition upon entrance into service in 38 U.S.C. 311 and 332 and the presumptions related to certain diseases in 38 U.S.C. 312 and 333.)

Peacetime veterans are entitled, however, to receive wartime rates of compensation if the disability is found to have resulted from an injury or disease received in line of duty "as a direct result of armed conflict” or “while engaged in extrahazardous service, including such service under conditions simulating war" (38 U.S.C. 336 and 343.)

A major change in the established policy in the service-connected benefit programs was made by the Congress in 1956 following an extensive study and recommendations made by the House Select Committee on Survivor Benefits. A new program of dependency and indemnity compensation was authorized by the Servicemen's and Veterans' Survivor Benefits Act, August 1, 1956, for all service-connected deaths occurring on or after January 1, 1957, with a right of application for persons otherwise eligible for the old death compensation benefit. Under this new program for service-connected deaths, no distinction in the rates payable is made between peacetime and wartime service.

In connection with the evaluation of disability for disability compensation purposes, the law for many years has required that the Administrator of Veterans' Affairs adopt and apply a schedule of ratings of reductions in earning capacity from specific injuries or combination of injuries. This provision (now 38 U.S.C. 355) provides that the "rating shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations."

We believe that there may well be ample justification for continuing the more liberal eligibility criteria applicable to war veterans and we do not recommend any change of such criteria. It seems quite apparent, however, that a veteran who has suffered a disability as the result of peacetime military service has the same loss of earning capacity as the veteran who suffered the identical disability (which is disabling to the same degree) during wartime service. It follows that we are unable to justify a continuance of the differential in the rates of disability compensation on any basis which is consistent with the nature and purposes of that benefit. We accordingly recommend the enactment of the enclosed draft of bill which would authorize payment in peacetime cases of the present wartime rates of disability compensation and additional compensation for dependents. There is set forth below an estimate of the number of cases that would be affected by the enactment of the draft bill during the first year and the additional cost of the proposal for that period :

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It is estimated that the additional costs would increase in each of the 4 ensuing years to approximately $37.9 million during the fifth year.

Advice has been received from the Bureau of the Budget that the enactment of this proposal would be in accord with the program of the President. Sincerely,

W. J. DRIVER, Administrator.

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FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW, ORDER

February 3, 1965. Wood, J.

This injury action is a suit brought under the Federal Tort Claims Act 28 U.S.C.A. 1346 (b). The plaintiff seeks to recover damages for injuries which he sustained while undergoing treatment in a Veterans' Administration Hospital in Baltimore, Maryland, in 1959.

After a full and complete trial from December 14, 1964, until December 22, 1964, we find the following:

FINDINGS OF FACT

1. The plaintiff, a 29-year-old Army veteran, was found to have tuberculosis of both lungs in December, 1958, after an examination conducted at a Veterans' Administration Clinic in Philadelphia, Pennsylvania.

2. Upon the recommendation of the Veterans' Administration (VA) Mr. Christopher entered the Loch Raven Veterans' Administration Hospital, Baltimore, Maryland, on January 6, 1959.

3. On March 23, 1959, the plaintiff was operated upon for the partial removal of his right lung which procedure was successful and was followed by an uneventful recovery.

4. It was determined by the physicians at the hospital that a second operation was necessary on the plaintiff's diseased left lung. This surgical procedure was a resection of the upper lobe of the left lung and was performed on May 4, 1959.

5. A surgical team, including the Chief Surgical Resident, Edward Sharp, M.D., who was the surgeon, and Richard F. Kieffer, M.D., Head of the Surgical Service who assisted Dr. Sharp, coordinated their efforts in the operation.

6. The plaintiff's chest was opened by means of an incision extending between the fourth and fifth rib spaces on the left side beginning at a level near the nipple and extending posteriorly under the armpit and approximately to the fourth or fifth vertebra.

7. The periosteum (tissue around the bones) was then stripped from the fourth and fifth ribs, and these ribs were then disarticulated (which means that the joint between the rib and the articulating surfaces on the vertebrae was disrupted) from the transverse process of the fourth and fifth thoracic vertebrae by the use of an osteotome (surgical nippers or a chisel for dividing bone).

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