9. Certificate of disability-Continued.

(c) Statements presumed to have been warranted by the facts.

Where soldier was discharged upon certificate of disability, made by the surgeon of a general hospital, because of valvular disease of the heart and hypertrophy, existing prior to enlistment, although the source from which said opinion was derived can not now be determined, it must be presumed, from the history of the case (or from the soldier's direct statement), that the surgeon found sufficient evidence to warrant him in making such record; and the admissions of the claimant that he was afflicted with rheumatism in shoulder prior to enlistment tend in some degree to confirm said record: Held, upon the facts presented, that the rejection of the claim was proper. John C. Dillon (Sec. Schurz), 6 P. D. (o. s.), 395.

(d) Is presumed to state all serious disabilities then existing.

Where soldier was discharged on certificate of disability, signed by the surgeon of the regiment, on account of cicatrix from cut on foot received prior to enlistment, which certificate is silent as to claimant's allegation that injury was received in the service, the presumption is strong that if the claimant had been disabled as alleged the surgeon would have known it and mentioned it in his certificate. Joseph H. Harwood (Sec. Schurz), 6 P. D. (o. s.), 411.

A certificate of disability for discharge should be considered as containing a description of all the disabilities with which the soldier was suffering and which rendered him unfit for duty at the time it was issued, and this presumption will obtain until overthrown by positive, direct, and conclusive evidence. Citing, as holding above, Alonzo F. Wescott, 1 P. D., 316. Edwin H. Bonton (Asst. Sec. Hawkins), 2 P. D., 23.

A contemporaneous official record, e. g., a certificate of disability, is the best evidence of the facts recited therein, and is presumed to state all the serious disabilities then existing; but a mistake in said certificate as to the character or cause of the disability causing the discharge may be shown and the proper disability admitted, as in this case. George L. Emil Sherer (Asst. Sec. Bussey), 4 P. D., 5.

(e) Is conclusive unless impeached for fraud or mistake, or outweighed. A certificate of disability for discharge, stating that disability resulted from shell wound received in the service, may be rebutted by parol evidence and a certificate of an examining surgeon showing that the disability existed prior to enlistment. Joseph P. Mathew (Sec. Schurz), 7 P. D. (o. s.), 39.

Where surgeon's certificate of disability states that disabil ity alleged existed prior to or at enlistment, it shall be accepted 13201-14

9. Certificate of disability-Continued.

(e) Is conclusive unless impeached for fraud or mistake, or outweighedContinued.

as establishing the fact, unless fraud or mistake be apparent on the face of the certificate itself, or is clearly established by the most positive and conclusive evidence. Francis N. Hines (Asst. Sec. Hawkins), 1 P. D., 332.

The statements contained in the certificate of disability upon which the soldier was discharged from the service are accepted as establishing the facts therein stated, unless fraud or mis take be apparent upon the certificate, or be proved by positive evidence. Ellis Luther (Asst. Sec. Hawkins), 1 P. D., 387; Adam Cutts (Asst. Sec. Hawkins), 2 P. D., 26; David G. Rummel (Asst. Sec. Hawkins) ibid., 91.

While, as a rule, a certificate of disability should be taken as fully establishing the facts stated therein, it may be overthrown in exceptional cases wherein it is apparent, upon the face of the certificate, that a "mistake" of facts has been made, or wherein the existence of a "mistake" in such certificate is established by positive and conclusive evidence. Ben-. jamin Tutt (Asst. Sec. Hawkins), 1 P. D., 412.

The certificate of disability upon which the soldier was discharged from the service shall be taken as fully establishing the facts therein stated, unless fraud or mistake be apparent from the face of the certificate itself, or be clearly established by the most positive and conclusive evidence. Joseph D. Sawyer (Asst. Sec. Hawkins), 2 P. D., 122.

Statements contained in certificates of disability upon which the soldier was discharged from the service are deemed conclusive evidence of the facts therein alleged, unless either fraud or mistake be apparent upon the face of the certificate itself, or is clearly established by conclusive evidence. Citing Adam Cutts, 2 P. D., 26; W. H. H. Stone, I P. D., 182; Anson Howe, ibid., 198; Thomas H McCreary, ibid., 275; Isaac Williamson, ibid., 7. Albert T. Chapin (Asst. Sec. Hawkins), 2 P. D., 254.

Claimant was discharged, after three months' service, on a surgeon's certificate of disability from epilepsy, stated therein to have been contracted during service: Held, From the evidence, that he was a malingerer in the service, that his present condition is a result of his vicious habits, and that he did not contract epilepsy or any other disease while in service and line of duty, and rejection of claim is affirmed. Jacob S. Probasco (Asst. Sec. Hawkins), 2 P. D., 285.

The certificate of disability upon which a soldier is discharged is a contemporaneous record of such weight in evidence that it can not be contradicted by statements, made

9. Certificate of disability—Continued.

(e) Is conclusive unless impeached for fraud or mistake, or outweighed— Continued.

many years afterwards, of the surgeon or of the officers or comrades of the soldier, in the absence of fraud or mistake in the making of said certificate. Robert Hirsch (Asst. Sec. Hawkins), 2 P. D., 304.

As a general proposition, a certificate of disability at discharge is conclusive evidence of the facts therein alleged; but an exception exists where fraud or mistake appears on the face of the certificate or is clearly established by conclusive evidence. Citing Adam Cutts, 2 P. D., 26; William H. H. Stone, 1 P.D., 182; Anson Howe, ibid., 198; Thomas McCreary, ibid., 257; Albert T. Chapin, 2 P. D., 254; Benjamin T. Tutt, 1 P. D.,412. Henry A. Helmer (Asst. Sec. Hawkins), 2 P. D., 385. A certificate of disability made at discharge is a contemporaneous official record constituting the very best evidence to be obtained as to the truth of the recitals of fact therein contained, and can be successfully rebutted only by direct, positive, and conclusive evidence showing beyond question that there was an error or mistake of fact, or fraud, in making said record. Robert B. Paxton (Asst. Sec. Bussey), 4 P. D., 114.

A certificate of disability for discharge showing that such disability originated prior to enlistment is evidence of great weight, and can not be lightly set aside, but where the evidence clearly shows that a clerical error was committed in writing out the certificate the erroneous part may be disregarded. Seth W. H. Giffin (Asst. Sec. Bussey), 6 P. D., 264.

(f) But such evidence must be clear and positive.

Weight of an adverse certificate of disability (as to prior unsoundness) can only be removed by the positive and cumulative testimony of medical men, one of whom should be, if attainable, the soldier's family physician. Nathan Blew (Sec. Chandler), 3 P. D. (o. s.), 348.

When it is sought to set aside the weight of an adverse certificate of disability, the testimony on that point should be of the most satisfactory and conclusive character. Widow of Patrick J. O'Donnell (Sec. Teller), 13 P. D. (0. s.),

(g) And evidence adduced years after is not sufficient.

351.

A certificate of disability on which soldier was discharged, stating that the disability was received in a scuffle with a comrade, is not rebutted by testimony furnished thirteen years after the incurrence of the disability. Lyman Mack (Sec. Schurz), 7 P. D. (o. s.), 67.

9. Certificate of disability-Continued.

(g) And evidence adduced years after is not sufficient-Continued.

A discharge upon certificate of disability which states that the disability existed prior to enlistment will not be controverted by testimony of casual observers given twenty years after the said discharge. John Casey (Asst. Sec. Hawkins), 1 P. D., 209.

Lay testimony, given sixteen years after discharge, that claimant was injured by a limb of a tree falling on him April 7, 1862, is not sufficient to overcome the statement in surgeon's certificate of disability for discharge, dated in June, 1862, that he was suffering from a tumor on shoulder caused "by a fall a number of years since." James H. Deatley (Asst. Sec. Hawkins), P. D., 404.

A claim having been rejected on the ground the alleged disability existed prior to enlistment and rejection affirmed on appeal, it is held that affidavits subsequently filed (and twentyfour years after the date to which they refer), to the effect merely that the affiants never knew nor heard that soldier had the alleged disease prior to enlistment, are not sufficient, in connection with the other evidence, to overcome the effect of the certificate of disability, made at the time of discharge, which states said disease existed prior to enlistment. Widow of George W. Lewis (Asst. Sec. Hawkins), 2 P. D., 334.

Lay and verbal testimony, given years subsequent to claimant's discharge from the service, and years subsequent to filing original claim for pension, is inadequate to overthrow the offi cial statements contained in a surgeon's certificate of disability written at the date of claimant's discharge, and when claimant's name was dropped from the rolls upon such evidence, which was traced to a personal enemy, his name should be restored. Citing Joseph D. Sawyer, 2 P. D., 122. Emanuel P. Steed (Asst. Sec. Bussey), 3 P. D., 14.

(h)Can not be controverted by affidavit of surgeon who made it.

The surgeon's statement in the certificate of disability, made in the regular discharge of his official duty, as to the origin of a disability, must be accepted rather than his certificate made from memory long after the soldier's discharge. David K. Mitchell (Asst. Sec. Hawkins), 1 P. D., 62.

A statement in a surgeon's certificate of disability for discharge that soldier's disability existed prior to enlistment is not rebutted by the testimony of the surgeon who made such certificate, given twenty years thereafter, which states that said statement was incorrect, and was made by him because of an order preventing the discharge of soldier for disability unless the same existed prior to enlistment. James Boyle (Asst. Sec. Hawkins), 1 P. D., 149.

9. Certificate of disability—Continued.

(h) Can not be controverted by affidavit of surgeon who made it—Cont'd. A certificate of disability so far imports verity that it can not be overcome by the affidavit of the surgeon who signed it, as is held in James Boyle, 1 P. D., 149; Isaac Williamson, ibid., 7; but it may by proof of fraud or mistake. Citing Benjamin Tutt, 1 P. D., 412. Henry Halstead (Asst. Sec. Hawkins), 2 P. D., 221.

(i) Nor by claimant's statements from memory many years after.

Where claimant was discharged on certificate of disability wherein it is stated that he admits that disability existed previous to date he was drafted, though increased since, the admission can not be controverted by his statement made from memory years afterwards. Philip Newdecker (Actg. Sec. Bell), 7 P. D. (o. s.), 221.

When a soldier has procured his discharge by reason of his own false statements, which said statements are recited in his certificate of discharge, he will not be allowed in a pension claim to deny the truth of these statements, but he may attack the fact that he made such statements, as fraud or mistake on the part of those who made the record is always open to proof. John H. Ruhl (Asst. Sec. Reynolds), 8 P. D., —.

(j) But is rebutted by record of subsequent service.

Surgeon's certificate of disability for discharge, alleging total deafness, is rebutted by the record of a second service and certificate of disability for discharge on account of chronic disease of eyes, no reference being made to deafness. Wilson S. Dillingham (Asst. Sec. Hawkins), 1 P. D., 443.

(k) Adverse, overcomes presumption of prior soundness-when.

A statement in the certificate for discharge that the disability on account of which the soldier was discharged existed prior to enlistment not only outweighs the presumption of prior soundness, or the claimant's allegation thereof, but satisfactorily establishes the fact stated until the same is clearly disproved. Isaac Williamson (Asst. Sec. Hawkins), 1 P. D., 7. Cotemporaneous statements contained in the certificate of disability upon which the soldier was discharged from the service are held to be not only sufficient to overcome the presumption of prior soundness, but as fully establishing the facts therein stated until overthrown by unquestionable evidence. Alonzo F. Wescott (Asst. Sec. Hawkins), 1 P. D., 316; John J. Fox (Asst. Sec. Hawkins), ibid., 289.

Cotemporaneous statements in the certificate of disability upon which the soldier was discharged are held to be not only