1. Generally——Continued.

(d) Certificates of examination, ratings in-Continued.

having no binding force until approved by the Commissioner Francis M. Varner (Asst. Sec. Reynolds),

of Pensions.

7 P. D., 161.

(e) Rank, as affecting rating.

If an applicant has served in different grades for a time sufficient to entitle him to pension, it must be graduated by the respective terms of service in ech grade. (Act of June 7, 1832.) Atty. Gen. Taney, 2 Op., 539.

Rating of pension is governed by rank of soldier at the time. his disability was contracted. Adam C. Reinochl (Sec. Harlan), 5 L. B. P., 272.

If there is no muster in as of a certain rank, for the reason that the command was not of sufficient strength, such rank can not be considered in rating. Widow of Colonel Chantry (Sec. Cox), 7 L. B. P., 68.

The rank to which a soldier was commissioned subsequent to the incurrence of the disability which caused his death can not be considered in rating his widow's pension, as it could not be considered in rating his pension, if he were living, on account of such disability. Emily S. French (Sec. Delano), 7 L. B. P., 372.

Reconsidered and adhered to by Actg. Sec. Cowen (8 L. B. P., 370), who held, also, that the public resolution No. 69, approved July 11, 1870, second section, does not relate to pensions or apply to this case.

Muster in to a rank under a commission is essential in order that such rank may be considered in rating on account of disabilities incurred while serving under such commission. Mother of Robert D. Crosby (Sec. Delano), 1 P. D. (o. s.), 1.

If a soldier is wounded, or contracts disease, but he recovers therefrom temporarily so as to resume duty, and a disability arises therefrom subsequently, the rank held by him at the time such disability actually arises governs in rating his pension. Elizabeth McCluney (Sec. Delano), 1 P. D. (o. s.), 84.

Where no vacancy existed in the rank to which an officer was commissioned, and he was consequently never mustered into that rank, such rank can not be considered in rating. Mother of Michael Mullin (Sec. Delano), 1 P. D. (o. s.), 491.

A civil engineer in the Navy had no defined rank prior to the President's order of February 24, 1881, but being, by reason of pay, most nearly assimilated in rank to a lieutenant, his pension should be rated the same as that of a lieutenant; but

1. Generally-Continued.

(c) Rank, as affecting rating-Continued.

since that order civil engineers have a defined rank, according to which pension should be rated. Widow of Franklin A. Stratton (Sec. Teller), 9 P. D. (o. s.), 261.

It being shown that the pensioned disability originated subsequent to the date the pensioner's commission as captain was issued and to the date when a vacancy existed in the rank of captain, such disability should be rated under section 4694, Revised Statutes, in accordance with the rank of captain. Joshua Van Dervort (Sec. Teller), 11 P. D. (o. s.), 25.

A brevet rank can not be taken into account in fixing the rate of an officer's pension. Patrick Hart (Asst. Sec. Hawkins), 1 P. D., 85.

A first engineer, not regularly mustered, serving on a gunboat or war vessel, when pensioned under the second subdivision of section 4693, Revised Statutes, should be rated as of the rank of first assistant engineer in the naval service. John G. Coney (Asst. Sec. Bussey), 3 P. D., 394.

(f) Minimum.

Claimant appealed from the action of the Bureau fixing his rate of pension, and pending the appeal the medical referee, being requested for an opinion as to the adequacy of the rate, replied that, in accordance with an order of the Commissioner of Pensions, he was entitled to $4 per month, said order declaring that $4 should be the lowest rate allowed. It is held that said order of the Commissioner was error. John H. Lunderville (Asst. Sec. Bussey), 3 P. D., 209.

2. Grades.

A grade rate fixed and specified in the law is not, nor can it be, made by adding together the ratings for minor disabilities; nor is there an intermediate separate rate allowable between the several grade ratings. Francis M. Williams (Asst. Sec. Bussey), 3 P. D., 401.

Disabilities must be permanent in order to receive a grade rating; and the ratings for minor disabilities can not be added together in order to make a grade-rating. Alexander Martin (Asst. Sec. Bussey), 4 P. D., 378.

(a) First.

A person who has lost one leg and been totally and perma nently disabled in the other comes within the provisions of section 4698, Revised Statutes, and is entitled to $72 per month, under the act of June 16, 1880. George F. McFarland (Sec. Teller), 9 P. D. (o. s.), 258.

2. Grades-Continued.

(a) First-Continued.

There is no general law authorizing more than $50 per month for any pensioner unless he was receiving a pension of $50 per month June 16, 1880, or unless he has lost both hands or both feet or the sight of both eyes. Abram Duryee (Asst. Sec. Bussey), 3 P. D., 276.

See also AID AND ATTENDANCE.

(b) Second.

Loss of use of arm by wound or injury does not entitle to $24 per month. George Fill (Sec. Chandler), 4 P. D. (o. s.), 14. Nonspecific disability, not incapacitating for the performance of manual labor, does not entitle to $24 per month, second grade. Stephen Golden (Sec. Schurz), 4 P. D. (o. s.), 136.

Where party is receiving third-grade pension for wound of shoulder, not having lost arm above the elbow, the question is one of fact whether he is so disabled as to be incapacitated for performing any manual labor. William Darnell (Sec. Schurz), 6 P. D. (o. s.), 323.

Where party is receiving third-grade pension no increase can be allowed by compounding lesser disabilities unless those disabilities, in connection with that for which pensioned, are such as to preclude him from performing manual labor. John M. Freed (Sec. Schurz), 7 P. D. (o. s.), 7.

The rate of $30 per month under the act of March 3, 1883, extends only to (1) loss of arm at or above the elbow; (2) loss of a leg at or above the knee, or (3) any other disability amounting to incapacity for the performance of any manual labor. A disability equivalent to the loss of an arm is not ratable at $30 per month under said statute. John S. Smith (Asst. Sec. Hawkins), 1 P. D., 39.

A soldier in receipt of $24 pension under the act of March 3, 1883, for loss of hand or foot, is not entitled to a higher rate because of disabilities from other causes unless the conjoined effect of all incapacitates him for the performance of any manual labor. Augustus Annand (Asst. Sec. Hawkins), 1 P. D., 126.

Under the act of March 3, 1883, a pensioner who, in addition to the loss of his leg, is otherwise "so disabled as to be incapacitated for performing any manual labor" is entitled to $30 per month. Charles W. Struble (Asst. Sec. Hawkins), 2 P. D., 14.

The Department reasserts the ruling of Secretary Teller, made June 2, 1884, to the effect that "it would be proper to regard all pensioners whose disabilities are equivalent to that caused by the loss of an arm at the elbow or of a leg at or above

2. Grades-Continued.

(b) Second-Continued.

the knee as so disabled as to be incapacitated for performing any manual labor within the meaning of the act of March 3, 1883, and entitled from and after March 3, 1883, to the rate of $30 per month." Charles N. Smith (Asst. Sec. Bussey), 3 P. D., 78.

Total disability to perform any manual labor is intended by the statute to mean not inability to perform the ordinary manual labor performed by day laborers, wherein muscular power, if not other elements of physical endurance, is required, but inability to perform any manual labor wherein the element of usefulness or profit or of capacity for earning subsistence is involved. Andrew M. Luke (Asst. Sec. Bussey), 3 P. D., 298. (c) Third.

Soldiers who were granted a pension of $24 per month under the clause in the act of March 3, 1883, reading "or otherwise so disabled as to render their incapacity to perform manuallabor equivalent to the loss of a hand or a foot," are not entitled to have their pensions increased to $30 under section 1 of act of August 4, 1886, which applies to those pensioners only who have lost one hand or one foot, or been totally disabled in one hand or one foot. Joseph Wirth (Asst. Sec. Hawkins), 1 P. D., 381.

Where a pensioner's disability is confined solely to his foot, a rating of $24 per month as for a disability "equivalent to the loss of a foot" is erroneous under the act of March 3, 1883, which provides said rate only (1) for the loss of the foot, or (2) for its total and permanent disability (which is necessarily equivalent to its loss), or (3) for such disability from other causes as produces an incapacity to perform manual labor equivalent to the loss of a hand or a foot. Citing M. V. B. Richardson, 1 P. D., 375; Allen Cook, ibid., 365. (Asst. Sec. Hawkins), 2 P. D., 109.

Joseph Becher

By operation of law approved March 3, 1883, the rating for third-grade disabilities was increased from $18 to $24 per month; the former rating, in the application of it to the degree of disability for which it was prescribed in section 4698, Revised Statutes, having been abolished. Thomas Stapleton (Asst. Sec. Bussey), 3 P. D., 48.

The act of March 3, 1883, substituted the rate of $24 per month for that of $18 per month, which had been provided by section 4698, Revised Statutes, for a disability equivalent to the loss of a hand or a foot. The rate of $18 was retained by the proviso in said act (March 3, 1883), for the purpose only

2. Grades-Continued.

(c) Third-Continued.

of dividing proportionately for any degree of disability more than "total" ($8) and less than the loss of a hand or a foot, or for a disability equivalent thereto. James G. Smith (Asst. Sec. Bussey), 3 P. D., 172.

There is no $18 rate provided by law, nor has there been since the passage of the act approved March 3, 1883. Francis M. Williams (Asst. Sec. Bussey), 3 P. D., 401.

The act of March 3, 1883, establishes $24 per month in place of $18 per month as the third-grade rate, and all pensioners who are rated at third grade, and likewise. all claimants for increase, are entitled to $24 per month under said act. Ibid.

An allowance subsequent to March 3, 1883, of $18 as a thirdgrade rating is erroneous, and where the medical examination on which such allowance was based shows no title to thirdgrade rating the medical referee may exercise his discretion as to ordering a test examination to ascertain whether such rate should be reduced or increased. Alexander Martin (Asst. Sec. Bussey), 4 P. D., 378.

The act of March 3, 1883, substituted the rate of $24 in place of $18, as previously provided in section 4698, Revised Statutes. The rate of $18 was retained only for the purpose of propor tionately dividing degrees of disabilities established for which section 4695, Revised Statutes, made no provision. Since March 3, 1883, the loss of a hand or a foot, or a total and permanent disability of hand or foot, or other disabilities which rendered incapacity to perform manual labor equivalent to loss of hand or foot, contracted or incurred in service, entitled soldier of the late war to a pension of $24 per month. Order No. 184 of the Pension Bureau, dated September 6, 1892, abrogated as unauthorized by law. John P. Besser (Asst. Sec. Reynolds), 7 P. D., 146.

Pensioner, a captain, was pensioned for disability due to gunshot wound of left arm at $20 per month (total of his rank). His pension was subsequently increased to $24 per month from January 13, 1886, the date of the examining surgeon's certificate showing that the disability resulting from such wound was equivalent to the loss of a hand. In his appeal he contends that his increased rate should have commenced March 3, 1883, the date of the act fixing the rate of $24 for a disability equivalent to the loss of a hand or foot: Held, That appellant's rate of pension for total of his rank being higher than was provided for a disability equivalent to the loss of a hand prior to the passage of the act of March 3, 1883, it was fixed without