29. New disability-presumption is adverse-Continued. (a) Lay testimony, when insufficient to overcome presumption.

A soldier's widow having alleged his death was due to rheumatism contracted in service, it was held that as the soldier had failed, in his original claim for invalid pension, to allege rheumatism as a disability, or furnish any evidence of its existence, it is presumed that said disease did not exist in serv ice or result therefrom; and the presumption is so strong it is not overcome by the testimony, furnished years subsequent to service, of officers, comrades, and neighbors, to the effect that rheumatism existed in service and immediately subsequent thereto, such testimony being unsupported by record or medical evidence. Citing Ruth L. Miller, 2 P. D., 214. Widow of John L. Wright (Asst. Sec. Hawkins), 2 P. D., 253.

(b) Above rule modified.

Where a soldier failed in his original declaration to allege rheumatism as a disability, and failed also to furnish the Department with evidence of its existence during his lifetime, the presumption arises that said disease did not exist in the service and did not result therefrom; but this presumption, though strong, may be overcome and outweighed by testimony of officers, comrades, and neighbors, though unsupported by either record or medical evidence as to the existence of rheumatism either in the service or immediately thereafter. 8. C. (Asst. Sec. Bussey), 3 P. D., 191.

Whenever, in a claim for increase of pension under the general law, an applicant, after long and unexplained silence, alleges a new disability of which there is neither record nor medical evidence, the adverse presumption arising from the absence of such evidence is open to rebuttal by the testimony of officers, comrades, and neighbors; but such presumption is not outweighed by the mere recital under oath of assertions. made long since by the soldier himself or by general and vagne statements of the witnesses, and can be overcome only by direct and positive proof of incurrence and existence, or by satisfactory evidence as to facts and circumstances from which said incurrence and existence are to be naturally, fairly, and reasonably inferred. Thomas H. Strange (Asst. Sec. Reynolds), 7 P. D., 36; David Kiley (ibid.), 8 P. D.,

30. Newspaper accounts.

A newspaper account of a person's death is not admissible in evidence in proving the fact of death. Widow of Samuel Fulmer (Asst. Sec. Bussey), 6 P. D., 172.

31. Obscure diseases or causes.

An applicant for pension for disability from an obscure disease can not be expected in all cases to assign correctly the cause or causes from which his disability originated. The evidence presented in such cases may be sufficient to show the incurrence in the line of duty in the service of the disability for which pension is claimed without proving the particular cause or the nature of the disease from which the disability originated, but evidence on these points should be furnished when it is practicable to do so. James H. Shepard (Sec. Teller), 13 P. D. (o. s.), 311.

When the evidence presented by a claimant is sufficient to satisfy the mind of a candid and impartial person that a pensionable disability from some obscure cause (such as rheumatism, neuralgia, myalgia, or angina pectoris) exists, although no physical signs of it can be discovered by the examining surgeons, pension should be allowed at a rate proportionate to the degree of disability proved. John Douglass (Sec. Teller), 14 P. D. (o. s.), 385.

See DISABILITY (Degree of).

(a) Epilepsy.

Epilepsy is a disease of a most obscure nature, and the best medical authority, as well as common experience, teaches that it is almost impossible to detect its existence, except in its most advanced stages, unless the person afflicted is seen in a convulsion incident to the disease, or very soon thereafter; and an official contemporaneous record, going to show the existence of the disease prior to enlistment, is taken as fully establishing the facts therein stated, unless fraud or mistake be apparent upon the face of said record. James P. Depew (Asst. Sec. Hawkins), 1 P. D., 283.

(b) Insanity.

See SUBTITLE: LAY TESTIMONY.

32. Order 192.

Claim for increase under the general law and for pension under the act of June 27, 1890. The first was rejected on the ground of no increase, the second on the ground of no-benefit. The new evidence filed in the increase claim the Bureau refused to consider because of order No. 192: Held, That the rejection in both claims was proper under the medical examination made at the time, but order No. 192 had no bearing on the evidence filed for reopening in the increase claim, as the rejection was entered and letter of notification mailed before the order was promulgated on February 24, 1893. The order

32. Order 192-Continued.

could not create a limitation, because it was not available as
notice to claimants or attorneys until that date. James Baker
(Asst. Sec. Reynolds), 7 P. D., 485.

33. Origin.

See SUBTITLE: SUFFICIENCY AND INSUFFICIENCY.

34. Parol-admissible to prove term, but not fact, of service. Parol testimony can be received to determine the "term of service," but not as "proof of service itself," which must be shown by the record; and as the record in this case shows Twitchell performed the service, that fact can not be contradicted by parol testimony. Jason Millard, substitute for Uriel Twitchell (Sec. McClelland), 4 L. B. P., 301; (Sec. Thompson), ibid., 311.

The existence of such an organization as South Cumberland Battalion, Kentucky State Guards, and the fact that such organization was in the service of the United States, can not be established by ex parte affidavits unsupported by a record of any kind. Alvin West (Asst. Sec. Reynolds), 7 P. D., 74. (a) In absence of any record, is sufficient, under act of July 27, 1892.

Where the Government has neglected to make or keep any record of a soldier's enlistment, service, or discharge, the soldier should be permitted, under section 3 of the act of July 27, 1892, to establish these matters by the best evidence obtainable. Esther S. Williams, widow (Asst. Sec. Reynolds), 7 P. D., 327.

(b) Written discharge, may be sufficient to prove service.

A written discharge issued by the proper officer, if corroborated by parol evidence as to the fact of service, might be suf ficient to establish such fact in the absence of a record thereof; but if such evidence is not produced, the uncertain evidence of ex parte affidavits is insufficient. Nicholas Underhill (Sec. C. B. Smith), 5 L. B. P., 20.

(c) Admissible to show individual when record shows company's service. In both bounty-land and pension claims on account of service in the war of 1812, parol evidence of individual service is admissible only in case there is a record of the organization in which such service was rendered; but this decision should not disturb prior adjudications in pension claims. Francois Varian (Sec. Chandler), 3 P. D. (o. s.), 89.

Parol evidence can not be admitted to establish a claim for pension or bounty land unless there is record evidence of the service of the organization to which the claimant belonged. Harrison Welton (Sec. Schurz), 5 P. D. (o. s.), 279.

30. Parol-Continued.

(d) Can not be accepted to contradict the record.

Parol evidence, in war of 1812 claims, can not be accepted to contradict the record as to term of service. Moses Ash (Actg. Sec. Cowen), 2 P. D. (0. s.), 110.

Where soldier was discharged upon certificate of disability showing, from his own admissions, that he was not sound physically at the date of his enlistment, the testimony of an officer, in conflict with the hospital records, should not be accepted to show origin in line of duty. Zenas Eldred (Actg. Sec. Bell), 7 P. D. (o. s.), 208.

Alexander

Adverse record, positive in its character, can not, after a lapse of years, be set aside by parol testimony. Gilchrist (Sec. Schurz), 7 P. D. (o. s.), 249,

(e) May be accepted, when record is not made on personal knowledge. Adverse record made by a party who was not in a situation which would give him a personal knowledge of the facts may be controverted by other evidence, and the claim established by parol testimony, notwithstanding such adverse record. Nelson Hendrick (Sec. Schurz), 6 P. D. (o. s.), 466.

See also SUBTITLE: CERTIFICATE OF DISABILITY.

(f) As to substitute service.

Parol evidence may be received to show that soldier served as a substitute. Matilda Bartlett (Sec. Schurz), 5 P. D. (o. s.), 346.

Parol evidence is admissible to show that the principal rendered a part of the service, although the rolls indicate that the substitute served the entire period and received all the pay. Nancy Riley (Sec. Schurz), 6 P. D. (o. s.), 344.

(1) As to contracts of enlistment.

The contract of enlistment being partly in writing and partly not, the rule excluding all oral evidence of the subject-matter of a written contract is not applicable thereto. Cornelius Warren (Asst. Sec. Hawkins), 2 P. D., 278.

(h) As to fee agreements.

The genuineness of fee agreements attested under seal may not be impeached by the uncorroborated testimony of claimant that he did not sign any paper similar in description to said contracts. Ned Grease (Asst. Sec. Reynolds), 7 P. D., 423.

As to parol evidence see also BOUNTY LAND; RANK; RATING.

35. Presumptions-generally.

In all cases where the evidence in support of a claim is full and conclusive, something more positive than mere presumption is necessary to justify rejection.

(Actg. Sec. Cowen), 2 P. D. (0. s.), 388.

(a) From lapse of time between service and death.

Alexander Higgins

Where there is a long lapse of time between the period of service and the date of soldier's death, the presumption is strong that the fatal disease was contracted after discharge, to overcome which medical evidence, establishing a clear convic tion of service origin, should be adduced. Rebecca C. Meeker, widow (Sec. C. B. Smith), 4 L. B. P., 520.

(b) Of enlistment.

Presumption of enlistment can not arise where admitted facts show there was no enlistment.

Sec. Reynolds), 7 P. D., 56.

(c) From official records, generally.

Mary E. Davis (Ass“.

Written statements of an officer in the discharge of his official duty are attended with the presumption that his duty was properly performed. Isaac Williamson (Asst. Sec. Hawkins), 1 P. D., 7.

The record showing hospital treatment for rheumatism only, for sixteen days, there is good ground for inferring the rheu matism was comparatively slight; also, that he was not seriously afflicted with disease of spine and hernia as alleged; also, it is to be presumed said record is not only correct but embraces all the disabilities for which he was then treated. Citing Ellis Luther, 1 P. D., 387; Bridget Riordan, ibid., 45; Thomas Woods, ibid., 247; William H. Hardy, ibid., 259. Levi Connor (Asst. Sec. Hawkins), 2 P. D., 1.

The written entries and statements of a public officer in the discharge of his official duties are attended with the legal presumption that his duty therein was properly performed. Daniel Bidlake (Asst. Sec. Bussey), 3 P. D., 27.

(d) From hospital records.

Where a claimant has a hospital record in the service showing the existence of and treatment for disabilities named and described, and, subsequently, upon returning from hospital to duty, served two years without either an additional hospital record or a complaint of the aforementioned, or of similar, disabilities while in the service, it is held that the hospital record should be construed as showing all the diseases and all the treatment which claimant had during his army service; and