38. Record of War Department—Continued.

(e) As to service, when required-act of July 4, 1864.

The act of July 27, 1868, does not repeal or modify that part of section 6 of the act of July 4, 1864, which requires satisfactory record evidence from the War Department in claims then on file which should not be prosecuted to a successful issue within three years from that date. Robert M. Holt (Sec. Cox), 6 L. B. P., 491.

Record evidence of service and of a wound or disease producing a disability or death is required by the provisions of section 6 of the act of July 4, 1864, and such evidence should be obtained, if practicable, in all instances, without regard to the period during which the claim has been pending, but the absence of it in a case not within said section would not necessarily be fatal, though in a case within said section such evidence is indispensable. George G. Warringer (Sec. Cox), 6 L.

(ƒ) Of other than alleged disability.

Testimony of the surgeon, given twenty years after the war, will not outweigh the official record made at the time showing that claimant was treated for another disability than the one alleged and relied upon in his claim. Rodman E. Welch (Asst. Sec. Hawkins), 1 P. D., 251.

Hospital record, making no mention of alleged disability, raises an adverse presumption. William Waterbury, 2 P. D., 53; Levi Connor, ibid., 1; and Arad P. Brown, ib., 88, followed. Fritz Mueller (Asst. Sec. Hawkins), 2 P. D., 192.

Where there is no hospital or other record of the existence of an alleged disability in the service, but a conclusive record of other disabilities for which claimant was treated, the mere existence of said disability, after the expiration of years subsequent to claimant's discharge, can not be accepted as the basis of a conclusive presumption that the alleged disability did originate and exist in the service. Minors of William H. Nessle (Asst. Sec. Bussey), 3 P. D., 195.

The quality of the evidence is more important than the multiplication of affidavits as to a given fact. Ibid.

(g) Adverse.

Adverse record made by the regimental surgeon, presumably in a position to know the facts, is sufficient ground for rejec tion when no sufficient evidence is filed to controvert such record. John W. Carr (Sec. Schurz), 6 P. D. (o. s.), 390.

Adverse record, where prior soundness is shown, with ten months' active service before any hospital treatment, and the

38. Record of War Department-Continued.

(g) Adverse-Continued.

incurrence of the disability alleged is testified to by officers and comrades: Held, Sufficient proof to overthrow adverse record made without full knowledge of claimant's past condition. John Bartow (Asst. Sec. Hawkins), 1 P. D., 174.

(h) Casualty.

Where claimant alleges the incurrence of a pensionable wound in action, disabling him for duty, the statements of record should be taken as entitled to extraordinary weight, inasmuch as the casualties or losses incident to an engagement were required to be recorded and reported with accuracy in the service; and the most positive and conclusive evidence is required to establish the incurrence of an unrecorded or unreported injury in action, or to satisfactorily explain the absence of such a record. James B. Rodman (Asst. Sec. Hawkins), 1 P. D., 286.

(i) State v. United States.

The records of the Fourth Auditor's Office, showing the term of service in the war of 1812, can not be controverted by records of the adjutant-general of a State which were made up on affidavits of parties interested in obtaining bounty-land warrants. Isaac Bacon (Actg. Sec. Cowen), 1 P. D. (o. s.), 113.

39. Reduction.

The statement of the examining surgeon that he had committed an error in the biennial certificate, upon which the pension was reduced, considered in connection with the nature of the disease (disease of heart) and the history of the case, as afforded by medical certificates, may properly be accepted to prove that there was no decrease in the extent of the disability to warrant the reduction of the pension; and it was directed accordingly that the original rate be restored. Henry Langenberg (Actg. Sec. Bell), 9 P. D. (o. s.), 57.

40. Reimbursement.

Statement of claimant for reimbursement should be corrob orated by the affidavits of two credible witnesses. Elizabeth Wells (Sec. Chandler), 4 P. D. (o. s.), 65.

41. Res gestæ.

Claimant's husband was pensioned for gunshot wound of leg. While he was sitting on a porch at his home he attempted to rise and in doing so fell, receiving injuries from which he

41. Res gesta-Continued.

soon thereafter died. Immediately after the fall he was carried into his house, when, in response to inquiries, he declared that his leg gave way causing him to fall: Held, That soldier's statement as to what caused his fall was admissible as a part of the res gestæ. Rebecca A. Maness, now Harris (Asst. Sec. Reynolds), 7 P. D., 110.

See also SUBTITLE: ADMISSIONS AND STATEMENTS BY CLAIMANT.

42. Restoration-generally.

Where certificate of discharge shows the disability alleged was contracted in line of duty, and presumption of prior soundness raised by soldier's enlistment is strengthened by competent proof which remains unrebutted: Held, Appellant's name should be restored to pension roll. Anson Howe (Asst. Sec. Hawkins), 1 P. D., 198.

(a) Under section 4719, Revised Statutes.

In claims for restoration, where pensioner's name was dropped from the roll under section 4719, Revised Statutes, medical evidence covering the whole time for which pension is claimed is not required. Abram Smith (Actg. Sec. Bell), 6 P.D. (o. s.), 157.

43. Secondary.

See SUBTITLE: ALLEGATA ET PROBATA.

44. Special examiner's reports.

The mere report of a special agent (examiner), unsupported by any evidence, stating that a pensioner's disability from rheumatism has ceased, which report was rendered between one and two months after the report of the examining surgeons showing continuance in a pensionable degree of such disabil ity, is not sufficient to overcome the report of said surgeons and warrant suspension of payment. Nicholas Grensel (Sec. Delano), 1 P. D. (o. s.), 399.

45. Sufficiency and insufficiency, generally.

A preponderance of evidence in claimant's favor, added to the medical referee's opinion, which sustains the claim, is sufficient to establish it. James Dean (Asst. Sec. Hawkins), 1 P. D., 96.

(a) As to service origin-cases where evidence is held insufficient.

In the absence of any record evidence in support of a claim, and in view of the fact that claimant did not allege contraction of his disability in the service until about eleven years

45. Sufficiency and insufficiency, generally-Continued.

(a) As to service origin—cases where evidence is held insufficient—Cont'd. after his discharge therefrom, it is fair to infer that said disability was incurred since service. Frank Fricke (Sec. Delano), 2 P. D. (o. s.), 470.

The claimant alleges disease contracted in April, 1862, which averment is not sustained by the record, but on the contrary he is reported "present" on all rolls for more than two years, except when on a furlough in February, 1864; furnishing only the affidavits of comrades in support of his allegations, and the testimony of two laymen as to condition from discharge to September, 1867: Held, That the testimony is insufficient to establish the claim. Silas Davis (Sec. Schurz), 6 P. D. (o. s.), 265.

There being no record evidence in support of this claim, but the record showing, on the contrary, that the claimant was in desertion at the time of the alleged incurrence, and he having declared his inability to furnish the testimony of any commissioned officer, testimony of two comrades is not accepted as sufficient to prove the claim. Michael Cushing (Sec. Schurz), 8 P. D. (o. s.), 5.

Upon all the evidence in this case, rejection of the claim is affirmed, there being no record, medical or other competent evidence of service origin of alleged rheumatism. Adhering to former decision of February 4, 1887. Richard L. Shelley (Asst. Sec. Hawkins), 1 P. D., 132.

There being a record of rheumatism, but none of alleged disabling causes, nor any satisfactory evidence tending to show the existence at discharge or until two years after discharge of the latter causes, the service can not be held responsible for said causes in the absence of absolute proof of service origin. Levi Connor (Asst. Sec. Hawkins), 2 P. D., 1.

There being no record of alleged hernia, claimant's allegations and testimony being unsupported by that of his officers and comrades on special examination, he having subsequently reenlisted and having testified on special examination that he had no rupture when he returned home on furlough two years subsequent to the alleged time of incurrence of hernia, claim is not proven. William Waterbury (Asst. Sec. Hawkins),

2 P. D., 53.

There being no direct evidence as to alleged origin, the only favorable testimony being hearsay, and the claimant's allegations being wholly unsupported by proof, it is held service origin is not satisfactorily established. Edgar Schroeders (Asst. Sec. Hawkins), 2 P. D., 353.

45. Sufficiency and insufficiency, generally-Continued.
(b) Cases where evidence as to service origin is held sufficient.

Claimant claimed pension on account of injury to spine and hips received about March, 1862. The record shows him treated in July for lumbago, and was discharged in August, 1862, for phthisis with hæmoptysis. In December, 1863, he was exempted from the draft on account of spinal irritation. Soundness at enlistment being shown and treatment for spine and hips and rheumatism in 1865, and since 1881, it is held that claim is established. Citing Albert G. Hurst. Morgan Gandy (Asst. Sec. Hawkins), 1 P. D., 158.

Prior soundness being established, and certificate of discharge for disability, with other strong evidence going to show the incurrence in service and line of duty of the disability alleged: Held, Claim is established. William H. H. Stone (Asst. Sec. Hawkins), 1 P. D., 182.

Prior soundness being shown, the testimony of claimant's brother officers that he received an injury at the battle alleged, and that he complained at the time of pain in his bowels and groin, and that subsequently during service he was found to be suffering from hernia which he claimed was the result of said injury, such testimony and claimant's statements are sufficient to establish incurrence in the service. William B. Pierce (Asst. Sec. Hawkins), 1 P. D., 206.

There being no evidence as to unsoundness of eyes prior to enlistment, and soldier being on active duty continuously for twenty months subsequent thereto, with but one attack of sickness, called breakbone or salt fever; all the witnesses uniting in ascribing claimant's blindness to the same cause, and that cause as originating under the same circumstances and at the same time; continuance from discharge of disease or injury of eyes being shown, and total blindness twelve years after discharge; and no other probable or possible cause for said blindness appearing, it is held service origin is satisfactorily proved. James Edwards (Asst. Sec. Hawkins), 2 P. D., 136.

Where the evidence to prove the incurrence of lumbago, which was admitted, is precisely the same as that adduced to prove injury to nose, it is both illogical and unjust to hold said evidence to be sufficient to establish the incurrence of one of said disabilities and not that of the other, both disabilities being alleged in the same declaration as having been incurred at the same time and under the same circumstances. Thomas Grummitt (Asst. Sec. Bussey), 3 P. D., 46.