XI. An application for review on appeal shall not be entertained unless it is in conformity with paragraphs V to X, inclusive. FRANKLIN D. ROOSEVELT.

THE WHITE HOUSE,

March 31st, 1934.

[No. 6090]

EXECUTIVE ORDER

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.

"Nothwithstanding 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 later date.

(2) In the event the claimant's application is not complete at the time of original submission, the Veteran's 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 effective 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 a 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 a 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.24

(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

Amended by Veterans Regulation No. 2 (b).

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 I. 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 be 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 X (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 dissallowance 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.25

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.

25 Amended by Veterans' Regulation No. 2 (c).