8. Principle involved-Continued.

The forfeiture of the widow's pension for adulterous cohabitation is based upon the fact or assumption that the widow has voluntarily, openly, and notoriously substituted a paramour for her deceased husband, and is supported by him, accordingly putting an end to her pensionable status. Matilda Payne (Asst. Sec. Bussey), 5 P. D., 161.

Above principles were substantially overruled in Sarah J. Grooms, 7 P. D., 207.

9. Burden of proof.

Burden of proof to establish adulterous cohabitation is upon the Government. Addie A. Crofoot (Asst. Sec. Hawkins), 1 P. D., 391.

10. As affecting title under the act of June 27, 1890.

A widow pensioner under the general law who has been dropped from the rolls under the act of August 7, 1882, is not pensionable under the act of June 27, 1890. Sarah Jane Halsey (Asst. Sec. Bussey), 6 P. D., 281.

Where a widow files a claim for pension under the act of June 27, 1890, and it appears that at the time of such filing she was living in open, notorious adulterous cohabitation, the act of August 7, 1882, is applicable, and the claim should be rejected. Ann Manning (Asst. Sec. Reynolds), 7 P. D., 205.

Where the application for pension under the act of June 27, 1890, was filed May 8, 1891, and the evidence shows open and notorious adulterous cohabitation on the part of the claimant since the spring of 1892, pension may be allowed to continue for one year from the date of filing the application. Sarah Welch (Asst. Sec. Reynolds), 7 P. D., 289.

A widow who was a pensioner, and dropped from the rolls for open and notorious adulterous cohabitation under the provisions of section 2 of the act of August 7, 1882, is not entitled to restoration under the act of June 27, 1890. Ellen J. Pipes (Asst. Sec. Reynolds), 7 P. D., 489.

The adulterous cohabitation of a widow subsequent to the passage of the act of August 7, 1882, works a forfeiture of her pension, or right to a pension, under the act of June 27, 1890, or under prior laws, from the commencement of such cohabitation. Cases cited: Mary E. Boeke, 1 P. D., 427; Susan Larimer, 3 P. D., 235; Sarah J. Grooms, 7 P. D., 207; Ann Manning, ibid., 205; Sarah Welch, ibid., 289; Adolph Bernstein, ibid., 229; and Sarah Jane Houser, 6 P. D., 281. Eliza Fain (Asst. Sec. Reynolds), 7 P. D., 572.

See also DEPENDENT RELATIVES; MINORS; RESTORATION.

See FEE.

ADVANCE PAYMENTS.

AFFIDAVITS.

See DECLARATIONS; EVIDENCE; PRACTICE.

AGE.

See DECLARATIONS (Under act of June 27, 1890); DISABILITY; SERVICE.

AGENTS.

See ATTORNEYS.

AGREEMENTS.

See ATTORNEYS; FEES.

AID AND ATTENDANCE.

1. Regular (act of June 18, 1874).

(a) Nature of helplessness, generally.

(b) As distinguished from disability entitling to $31.25.

(c) Disability must approximate that from loss of both hands.

(d) When insanity entitles to a first-grade rate.

(e) The question of helplessness is wholly medical.

(f) When question is not wholly medical.

(g) What evidence is admissible in proof.

(h) Illustrative cases within the law.

(i) Illustrative cases not within the law.

2. Frequent and periodical (act of July 14, 1892).

(a) Attendance must be continuing and permanent.

(b) When insanity entitles to the intermediate ($50) rate.
(c) Question is not wholly medical.

1. Regular (act of June 18, 1874).

To entitle a claimant to a rating of $50 per month under the act of June 18, 1874, he must be "so permanently and totally disabled as to require the regular and personal aid and attendance of another person." James B. Hanvey (Asst. Sec. Haw kins), 1 P. D., 216.

The standard by which to determine the degree of disa bility for which the rate of $50 per month is provided by the act of June 18, 1874, is the fact that the regular personal aid and attendance of another person is required. Henry Schmidt, 3 P. D. (o. s.), 158: see SUBTITLE (a), reaffirmed. Daniel A. Wood (Asst. Sec. Bussey), 3 P. D., 310.

Those persons only are entitled under the act of June 18, 1874, who require the aid and attendance of another person because of total and permanent helplessness, or have lost both

1. Regular (act of June 18, 1874)-Continued.

hands, or been practically totally disabled in both hands; and a person who has some use of both hands is not pensionable thereunder. George Garfield (Asst. Sec. Bussey), 4 P. D., 258.

(a) Nature of helplessness, generally.

The word "helplessness" as used in the act of June 18, 1874, does not imply utter physical prostration, but refers not only to the physical helplessness which compels one to depend at stated intervals, in the ordinary and necessary affairs of life, upon the personal aid and attendance of another person, but also to his inability to gain a subsistence by his own exertions. Henry Schmidt (Sec. Chandler), 3 P. D. (o. s.), 158.

"The regular personal aid and attendance of another person" provided by the statute is such "attendance" as is regu lar from day to day-not simply periodical, or at stated or regular intervals, but continuous in the sense that it must be at the command and service of the person whose total and permanent helplessness necessitates the aid and attendance of another in performing the ordinary and necessary functions of daily life. Edmund O. Beers (Asst. Sec. Reynolds), 7 P. D, 113.

(b) As distinguished from disability entitling to $31.25.

As a governing principle, in cases where a disability is the result of disease (instead of injury), the higher rate allowed by the act of June, 1874, should be allowed only when it is shown the pensioner is a complete invalid, actually requiring the aid and attendance which an invalid is presumed to need, and which is absolutely necessary to his comfort and wellbeing; while the rate of $31.25, provided in section 4698, Revised Statutes, should be allowed when he is only a comparative invalid, though requiring aid and attendance. Cyrus W. Stanley (Sec. Chandler), 3 P. D. (o. s.), 170.

The rate of $31.25 was not abolished by the act of June 18, 1874, providing the rate of $50 per month for those who were "so permanently and totally disabled as to render them utterly helpless or so nearly so as to require the regular personal aid and attendance of another person," but was retained for disabilities equivalent in degree, but not permanent. Widow of Rowland M. Jones (Asst. Sec. Bussey), 3 P. D., 72.

(c) Disability must approximate that from loss of both hands.

The act of June 18, 1874, which provides a pension of $50 per month for certain specific disabilities resulting in total or permanent helplessness, requiring the regular aid and attendance of a second person, appears to indicate that it was not intended by the framers of the law that other disabilities from

1. Regular (act of June 18, 1874)-('ontinued.

(c) Disability must approximate that from loss of both hands-Cont'd. injuries to both hands should be pensioned under this act than such as are equivalent or nearly equivalent to the loss of both. John R. Collett (Sec. Schurz), 6 P. D. (o. s.), 488.

(d) When insanity entitles to a first-grade rate.

The Department holds that the "regular personal aid and attendance" contemplated by the act of June 18, 1874, is the same as that which is required by one who is confined in an asylum and whose mental derangement is such as to make personal aid and attendance necessary. George Welch (Asst. Sec. Bussey), 3 P. D., 121.

Mere confinement in an insane asylum does not entitle to the first grade rate on account of insanity; but to entitle to that rating the degree of helplessness specified in the law must be shown. James Caton (Asst. Sec. Bussey), 6 P. D., 159.

The mere fact that an insane pensioner is confined in an asylum does not show title to first-grade rating on account of insanity. Citing James Caton, 6 P. D., 159. Thomas G. Conaty (Asst. Sec. Bussey), 6 P. D., 238.

(e) The question is wholly medical.

The question as to whether the extent and severity of a disability is such as to bring it within the rule announced as to what is, under the statute, "total and permanent helplessness," etc., is a purely medical one, and the opinion of the medical referee thereon is generally conclusive, when based on the results of medical examinations. Citing Lucinda Gaskell, 1 P. D., 29; Patrick Preston, ib., 262; John Douglass, ib., 52; William H. Garrison, ib., 262; Joseph F. Faulkner, ib., 292; Uriah W. Romine, ib., 299. Edward Posson (Asst. Sec. Hawkins), 2 P. D., 36.

(f) When question is not wholly medical.

When soldier's disability is the result solely of disease contracted in the service and in line of duty, the question as to whether he is so totally and permanently helpless as to require the regular aid and attendance of another person is not wholly a medical one. Edmund O. Beers (Asst. Sec, Reynolds), 7 P. D., 113.

(g) What evidence is admissible in proof.

The total and permanent helplessness of soldier requiring the regular personal aid and attendance of another person may be established by lay and ex parte medical testimony of credible witnesses who base their knowledge upon long and fre quent personal observation. Edmund O. Beers (Asst. Sec. Reynolds), 7 P. D., 113.

1. Regular (act of June 18, 1874)-Continued.
(g) What evidence is admissible in proof-Continued.

Where such helplessness so established is medically found to be due solely to pensionable causes, the soldier is entitled to first-grade pension, $72, under act of March 4, 1890, whenever an examining surgeon or board of surgeons certify to such degree of disability. Ibid.

(h) Illustrative cases within the law.

This claimant wears an artificial leg, but (because of the shortness of the stump) without a foot attached; his right arm is amputated near the shoulder, and the wound in his left shoulder so affects that arm and hand that they are frequently of little use; Held, said injuries not only totally incapacitate him from earning a subsistence from his own exertions, but necessarily require the regular aid and assistance from other persons in eating, dressing and undressing, and in many other actions necessary in a man's life; and the case is within the act of June 18, 1874, in the absence of any other provision of existing law which is commensurate with the extent of his disabilities, although it does not fulfill all the requirements of said act. Henry Schmidt (Sec. Chandler), 3 P. D. (o. s.), 158.

It being shown that the pensioner's left hand and arm are so disabled as to be as useless as if amputated, and that he is unable with his other hand and arm either to bathe his face, cut his food, or dress and undress himself, requiring aid and attendance for these purposes, it is held such is a condition of total and permanent helplessness, requiring regular aid and attendance, within the meaning of the law, although he is able to write with his right hand. John R. Collett (Sec. Teller), 11 P. D. (o. s.), 163.

(i) Illustrative cases not within the law.

Pensioner's vision in right eye is lost; injury to left eye rated at 15/19; loss of sight rated at 12/18; double inguinal hernia, 12/18; injury of left hand, 3/4. Examining surgeons certify no attendant is required: Held, pensioner is not shown to be so permanently and totally helpless as to require regular aid and attendance, and is properly rated at $30. John Costello (Asst. Sec. Hawkins), 2 P. D., 84.

A pensioner being able to dress and feed himself, go about unattended, and care for himself generally a good part of the time, with only a few minutes' assistance daily from his wife, is not entitled to a first-grade rate, although he has occasional, regular, and periodical severe and aggravated attacks, requir ing the aid and attendance of another person. Edwin Barnum (Asst. Sec. Bussey), 6 P. D., 175.