3. When not allowable-Continued.

and where a pensioner has acquiesced in the reduction of ratings from time to time and filed, within a year from date of adjudication, no evidence with reference thereto, ratings will be allowed to stand. Quoting summary of rulings in appendix to vol. 3 P. D., 423. John Holt (Asst. Sec. Bussey), 4 P. D., 240.

The evidence on file at date of adjudication showing the several rates allowed were commensurate with the degree of disability then shown to exist, ratings in which no error of fact or law is manifest will not be disturbed. James McFarland (Asst. Sec. Bussey), 4 P. D., 297.

In the absence of the strongest medical or lay evidence to dispute the justice and sufficiency of ratings made by the duly authorized surgeons and boards of medical examiners, when approved by the medical referee, the Department accepts such ratings. Edwin C. McFarland (Asst. Sec. Bussey), 4 P. D., 326.

The Department holds that, where a pensioner for nonspe cific disabilities has been paid pension for a long period-vary. ing rates from 1862 to 1887-it becomes extremely difficult, not to say hazardous, to rerate the soldier for arrears covering any considerable portion of time. The difficulty arises from the variety of opinions that may be entertained respecting the adequacy of old ratings, and therefore the lack of definite ground for overruling the ratings that have stood unchallenged for years. The hazard arises from the likelihood of setting a precedent that will lead to the overhauling, for purposes of rerating, of an incalculable number of cases all claiming to be meritorious-a precedent that, if followed, would overturn the work of the Bureau of Pensions, and will not be sanctioned. Sarah A. Adam (Asst. Sec. Bussey), 5 P. D., 154.

The Department declines to disturb former ratings of pension where it does not appear that a manifest error, either of law or of fact, about which there can be no dispute, was involved. Andrew Stranahan (Asst. Sec. Bussey), 5 P. D., 199.

In cases of specific disability, an application for rerating and increasing a pension is allowable only when it appears that, when naming the rate in the pension certificate, a mistake was made in designating the amount of pension authorized by concurring medical examinations, defining the degree and the nomenclature of claimant's disability as approved in the adjudication of the claim itself and reported to the Department. Martin L. Stover (Asst. Sec. Bussey), 5 P. D., 353.

!

4. Evidence, when and when not admissible.

The claimant for rerating has the right to furnish further evidence as to the extent of his disability for the period to which the claim relates. John E. Frock (Sec. Schurz), 6 P. D. (0. s.), 251.

Cases of rerating where increase of current pension also is not involved should be determined on the record alone, without admitting new evidence, unless fraud or collusion is sug gested, in which cases evidence on that point only should be admitted. Suggestion in advisory opinion of Assistant AttorneyGeneral Shields, 6 P. D., 297.

5. Laws and rulings not retroactive.

The law authorizing increase of ratings is not retroactive in its effect, nor is the schedule of rates, as fixed by the Commissioner, authorizing an increase in cases of minor specific disabilities, retroactive in its operation. William V. Sheafer (Asst. Sec. Bussey), 5 P. D., 153.

6. Right of widow as to deceased husband's pension.

A widow has no right to file a claim for rerating of her deceased husband's pension, but she may complete such a claim filed by him and left pending at his death. Widow of Rowland M. Jones (Asst. Sec. Hawkins), 1 P. D., 162.

A widow can not make and prosecute a claim for increase of her husband's pension after his death. Ibid. (Asst. Sec. Bussey), 3 P. D., 72.

Contra: 8. c., ibid., 433.

The widow of a deceased pensioner has no right, under the law, to make and prosecute an original claim for a rerating of her husband's invalid pension. So much of the supplemental decision of April 15, 1890, in the case of Rowland M. Jones (3 P. D., 433) as recognizes such a right is overruled. Caroline E. G. Colby (Asst. Sec. Reynolds), 7 P. D., 24.

See also DECLARATIONS; RES ADJUDICATA; REVOLUTIONARY WAR.

1. Generally.

RES ADJUDICATA

2. When doctrine of res adjudicata is not applicable.

3. When adjudicated cases will be reconsidered, generally.

4. As to construction of law.

5. Questions of weight of evidence, judgment, or opinion.

6. No reconsideration on same facts.

7. New facts must be disclosed or new evidence filed.

(a) Cumulative evidence is not sufficient,

8. Where error is manifest.

9. As to fee.

10. As to disability and rating.

1. Generally.

Upon proper application, the Department will review its former decision, upon the facts and the law. Richard L. Shelley (Asst. Sec. Hawkins), 1 P. D., 132.

The Department, having once passed upon the question involved in an appeal will not again consider the case, except for reasons such as would justify a court in granting a motion for a new trial. James Sconey (Asst. Sec. Hawkins), 1 P. D., 372.

It is not the duty of the Secretary of the Interior to revise matters long since settled and determined by former administrations involving the rights of two parties. Thomas A. Harris (Asst. Sec. Reynolds), 7 P. D., 50.

Neither the doctrine of res adjudicata nor stare decisis is strictly applicable to pension cases, and when adopted by the Department simply becomes a rule which each administration prescribes for itself as a matter of policy or covenience, and may be waived, suspended, or ignored, as justice, policy, or convenience requires. Mary E. Eastridge (Asst. Sec. Reynolds), 8 P. D., 5.

2. When doctrine of res adjudicata is not applicable.

The doctrine of res adjudicata is no bar to a proceeding to set aside action in a case on the ground that it is based on a fraud or a mistake. Chalkley, alias T. C. Milbourn (Asst. Sec. Hawkins), 2 P. D., 360.

Where a pension certificate has been issued to a deserter, under a misapprehension of the facts and contrary to law, the Secretary of the Interior has power to refuse payment thereon, and the doctrine of res adjudicata does not apply in such a Peter Kenney (Asst. Sec. Reynolds), 7 P. D., 588.

case.

3. When adjudicated cases will be reconsidered, generally. The opinion of the Attorney-General of June 15, 1861, to the effect that the head of an Executive Department may lawfully review and reconsider on its merits any claim decided adversely by his predecessor in office, is concurred in and followed in pension adjudications; but a decision of a predecessor will not be lightly disregarded, and a change of action will not be made unless the evidence clearly satisfies the executive officer that the former decision was erroneous, either in law or the facts of the case. Widow of John Featherson (Sec. C. B.

Smith), 5 L. B. P., 33.

The Supreme Court of the United States has held that the right of an incumbent to review a predecessor's opinion extends only to mistakes in matters of calculation and to cases of rejected claims in which material testimony is afterwards.

3. When adjudicated cases will be reconsidered, generally-Continued.

discovered and produced, and in the absence of such testimony such opinion is final and conclusive. (No decision specified.) Communication to Edward Lilly (Sec. Harlan), 5 L. B. P., 425.

The right to review a decision of a predecessor should extend only to mistakes in matters of calculation and to rejected claims in which material testimony is afterwards discovered. Quoting and following Supreme Court ruling, as announced in Edward Lilly (Sec. Harlan), June 12, 1866. Theodore Loewe (Sec. Chandler), 3 P. D. (o. s.), 132.

In view of the former decision herein, by a former administration, adverse to increase from June 10, 1875, and restrictions contained in section 4698, Revised Statutes, the Department held it was not justified in authorizing allowance of increase prior to June 1, 1881, the date of certificate of examination, although the Commissioner proposed, with the concurrence of the Department, to allow increase from June 10, 1875. Joseph Hannan (Sec. Kirkwood), 9 P. D. (o. s.), 76.

Where the right to pension had been determined by this office in 1866, and the allowance of the same was not disturbed in the adjudication of applications for increase in 1872 and 1879, and no evidence having been presented to alter the facts as they existed at the time of the original adjudication or to show that the action then taken was based upon any false or fraudulent representations on the part of the claimant, the propriety of the original allowance of pension should not now be questioned (in an appeal in a pending claim for increase). Alfred Kite (Sec. Teller), 9 P. D. (o. s.), 232.

The merits of the claim having been once passed upon, the Department will not review or reconsider its decision or reopen the adjudication of the claim unless it is definitely shown by competent evidence that some error was committed or that new evidence and new facts would materially change the former conclusion; and evidence tending merely to discredit a former witness is not sufficient to change the action taken. Citing Noah N. Tyner, 1 P. D., 21; Birney Hoyt, ibid., 70; Rowland M. Jones, ibid., 162; Morgan Gordon, ibid., 188. John Swartz (Asst. Sec. Hawkins), 2 P. D., 3.

No new and material evidence tending to change the former decision having been filed, nor any supposed error of law or mistake of fact in the former adjudication pointed out or alleged, the motion for reconsideration is overruled. Citing Noah N. Tyner, 1 P. D., 21; Birney Hoyt, ibid., 70. Chambers C. Mullin (Asst. Sec. Hawkins), 2 P. D., 18.

3. When adjudicated cases will be reconsidered, generally-Continued.

Repeated appeals upon the same same point are not allowable; but if the appellant believes injustice was done him by the former decision, or has come into possession of new and material evidence which he was unable to produce in the previous adjudication, and which would have warranted a favorable decision in the first instance, or could point out any mistake of fact or error of law in said decision, he should apply for a rehearing. Quoting and following Morgan Gordon, 1 P. D., 21. Edward A. Colnor (Asst. Sec. Hawkins), 2 P. D., 21.

After a claim has been rejected and rejection affirmed by the Department, a reconsideration of such affirmation is justified upon the ground only that in the affirming decision a manifest error was committed, or that new, material, and important evidence, such as would have warranted a favorable decision in the first instance, is produced by the claimant-new, material, and important evidence which, as it may appear, claimant had failed to procure, even at the expense of proper diligence. Citing Noah N. Tyner, 1 P. D., 21; Birney Hoyt, ibid., 70; Rowland M. Jones, ibid., 162; Morgan Gordon, ibid., 188; John Swartz, 2 P. D., 3; Chambers C. Mullin, ibid., 18; Edward A. Colnor, ibid., 21; John H. Gleason, ibid., 106; Widow of Louis S. Lake, ibid., 111; George S. Newton, ibid., 144. Robert Hirsch (Asst. Sec. Hawkins), 2 P. D., 304.

Cases long since adjudicated by previous administrations should not be reopened, reconsidered, or readjudicated, except (1) upon discovery that the pension was procured through fraud; (2) when under the statutes the pension is required to be increased or reduced in accordance with the degree of pensionable disability; (3) when indisputable or manifest error in law or fact is apparent in the record, or (4) when, on presentation of new and material evidence, it is indubitably shown that through mistake the pension was in whole or in part illegally reduced or granted. Jackson Martin (Asst. Sec. Reynolds),

7 P. D., 265.

4. As to construction of law.

The interpretation of a law given by the competent authority having jurisdiction of the subject can not be revised or reversed by his successor in the same office so as to affect the rights of those who have received pensions under the first interpretation, although such construction should be deemed by the successor in office erroneous; but the case would be