Digest of Decisions and Opinions Relating to Pensions and Bounty Land

4. Secondary and contributory causes-Continued.

Where claimant was pensioned at three-fourths disability on account of varicose veins, and years subsequent to discharge received a gunshot wound in leg from which gangrene ensued, necessitating amputation of limb, the testimony of the surgeon who performed the amputation expressing the opinion that the coextensive varicose condition contributed to the obstruction of the circulation and excited the subsequent gangrene: Held, That the connection alleged between the preexisting condition of limb and amputation from wound is a mere matter of conjecture, and claim for increase on account of amputation is not allowable under the laws. John Spalding (Sec. Schurz), 8 P. D. (o. s.), 16.

To establish secondary or contributory cause of disability, or of consequential damages, the claimant, before becoming entitled to increase of pension, must prove that the accident resulting in said disability was directly caused by his previ ously incurred pensionable disability. Henry Mensing (Asst. Sec. Hawkins), 1 P. D., 336.

Claimant was pensioned for disease of right leg and filed a claim for increase of pension on account of disease of left leg. The medical referee held that disease of left leg was not the result of disease of right leg, for which pensioned, but that the condition of system which induced the one may have and probably did cause the other. Held, That the disease of right leg is inseparable from the disease of left leg, and the condition due to both is pensionable. John Ailer (Asst. Sec. Bussey), 3 P. D., 251.

It has been uniformly held that to entitle to pension on account of an accident resulting in disability or death it must be proved to have been caused directly by the previously incurred pensionable disability, and not by negligence, carelessness, or undue risk on the part of the soldier, or by neglect of that care and caution which common prudence would dictate should be exercised by one in a diseased or crippled condition. Widow of Frank Petersdorf, alias John Smith (Asst. Sec. Bussey), 4 P. D., 96.

In cases involving the right to pension for secondary or contributory causes of disability or of death, the Department uniformly holds that there must be conclusive evidence showing that the alleged disability or death was directly caused by the previously incurred disability, and was not the result of either negligence or carelessness nor of undue risk on the soldier's part. Elizabeth Edgell, widow (Asst. Sec. Bussey), 5 P. D., 96.

See also Rebecca Maness, CONTRIBUTORY NEGLIGENCE.

5. Particular sequences.

(a) Eyes, disease of, and smallpox.

It being shown that the soldier's eyes were good prior to an attack of smallpox in service, and that subsequently thereto his eyes began to fail and the failure or disease has continued, disease of eyes, being a probable result of smallpox, as held by the medical referee, may be accepted as due thereto in this case. Daniel M. Redding (Asst. Sec. Hawkins), 2 P. D.. 167.

(b) Heart disease and rheumatism.

The Department accepts the statements of claimant's family physician that his existing affection of the heart is the result of rheumatism. Heinrich Schoening (Asst. Sec. Bussey), 3 P. D.,

162.

See also DISABILITIES.

(f) Phthisis pulmonalis and wound of leg.

Where the soldier was pensioned for wound of lower part of left leg and died of phthisis pulmonalis nearly six years after date of discharge, it was held that there was no connection between the wound and the fatal disease. Henrietta Flacker (Sec. Schurz), 6 P. D. (o. s.), 339.

(g) Rheumatism and measles.

Whether rheumatism is a result of measles, as alleged, is a purely medical question, and the opinion of the medical referee thereon is accepted, under a long line of decisions, as final and conclusive. Arad P. Brown (Asst. Sec. Hawkins), 2 P. D., 88.

(h) Typhoid fever and measles or chronic diarrhea.

Following the opinion of the medical referee, typhoid fever can not be accepted as the sequence of a previously diseased condition caused by measles or chronic diarrhea. Elizabeth A. Newhall, widow, (Asst. Sec. Hawkins), 1 P. D., 34.

6. As affected by vicious habits.

The record showing treatment for diarrhea, but the testimony on special examination failing to show the existence of any diarrhea during twenty years subsequent to discharge, and showing that during those years the claimant led a grossly immoral and intemperate course of life, the fair presumption is that he had completely recovered at discharge from the diarrhea shown of record in service, and that his subsequent intemperate habits produced the second attack of the disease twenty years thereafter; and the latter disease is too remote from the former to be accepted as a sequence under the circumstances shown. William Waterbury (Asst. Sec. Hawkins), 2 P. D., 53.

See also COMMENCEMENT; DEATH CAUSE; DECLARATIONS (Act of June 27, 1890-Senility); DISABILITY; MEDICAL REFEREE; ORIGIN.

SERVICE

1. Generally.

2. Evidence of.

(a) Parol evidence.

(b) Record evidence.

(1) War Department's jurisdiction as to its records.

3. Length of service.

(a) Issue of bounty-land warrant not conclusive of.

(b) Period for which paid governs generally.

(e) War of the rebellion.

(1) Under act of July 14, 1862.

(2) Under act of June 27, 1890.

4. Muster into.

(a) When essential to put a soldier in.
(b) When not essential.

5. General service.

6. In Indian wars.

(a) Act of July 27, 1892.

7. Patriot war.

8. In war of 1812.

(a) Generally.

(b) of aides-de-camp.
(c) Of waiters.

(e) Packhorsemen.

(f) Teamsters.

15. Contract and civil surgeons.

16. Drafted men and substitutes.

17. Hospital and other stewards.

18. Pay clerk and paymaster's clerk.

19. Powell's Battalion.

20. Privateersmen.

21. Professor in Military Academy.

22. Provost-marshals.

23. Purser's clerk.

24. Rejected recruit.

25. Revenue marines.

26. War vessels.

27. Under act of March 25, 1862,

1. Generally.

Warriors of the Six Nations who were in the service of the United States were enlisted men and are entitled to pension. Isaac Jimison (Actg. Sec. Bell), 6 P. D. (0. s.), 76.

A person enlisted under the age recognized for military serv ice and discharged under a writ of habeas corpus was in the service. Charles T. Loomis (Asst. Sec. Bussey), 5 P. D., 35.

In order to constitute a valid enlistment there must be not only a tender of service on the part of the person desiring to enlist, but an acceptance of the same by the Government acting through some duly authorized officer or agent. Hannah Chapman (Asst. Sec. Reynolds), 7 P. D., 385.

It appearing from the record that the soldier's organization was not disbanded until after the time he alleges he incurred disease of eyes, and that he remained with said organization until, and was released therefrom only at, its disbandment, it is

1. Generally-Continued.

held rejection of his claim for pension on the ground that said disease of eyes originated subsequent to discharge was erroneous under section 4701, Revised Statutes, and decision of the Department in case of George W. Hill, 7 P. D., 236. Rejection is set aside accordingly, and adjudication directed as to the merits of the claim. William M. Guy (Asst. Sec. Reynolds), 7 P. D., 484.

2. Evidence of.

(a) Parol evidence.

Claimant having been allowed bounty land upon the ground of his having served as a volunteer at the battle of Plattsburg, he should be regarded as having been in the service of the United States within the provisions of the act of March 9, 1878, and entitled to pension thereunder, unless it be shown that the warrant was improperly issued. Israel Barber (Sec. Schurz), 5 P. D. (o. s.), 445.

There being no record evidence of service of company, parol evidence will not be received to prove individual service. Betsey Farnsworth (Sec. Schurz), 5 P. D. (o. s.), 89.

Under the provisions of sections 3 of the acts of March 3, 1855, May 14, 1856, and March 9, 1878, as construed by this Department, parol evidence can not be admitted as proof of the service of a soldier unless there is record evidence of the organization in which he served. Bounty-land warrant was, in this case, therefore, improperly granted, as there is no record evidence of Capt. Moses Colton's company, alleged to have rendered service in 1814 in connection with the invasion of Plattsburg; and if there were record evidence of such service there could be no title to pension under the last-named act, as the alleged actual service of claimant's husband was but three days. Phoebe Goodrich (Sec. Schurz), 5 P. D. (o. s.), 224.

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.

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Digest of Decisions and Opinions Relating to Pensions and Bounty Land: With ...