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no relief for failure to make inspection. But “new and unused” material has a definite meaning different from secondhand material and the one could not in the least be substituted for the other. The distinction is so clearly drawn between new and secondhand material as to constitute a difference in the kind, the purchase of which would be prompted by different reasons, and the ultimate use by the purchaser thereof different. In the case of J. F. Donahoo Co. v. Reliance Equipment Co., 78 Sou., 800, the court held that failure to inspect hoisting engine before shipment in accordance with agruement did not permit shipment of a machine of different kind and size.
The claimant had a right to receive new and unused chain and the Government is liable for the difference in value thereof.
The value of the defective chain as such is stated as $46.75, and the difference in value of $67.87 is based on a computation of the proportionate part of the amount and charges paid for the whole. This appears fair and reasonable and upon review of the matter the settlement is reversed and the sum of $67.87 certified due claimant.
PER DIEM IN LIEU OF SUBSISTENCE WHEN MEALS INCLUDED IN
Travel orders issued under the authority conferred upon the heads of executive
departments and other Government establishments by the act of August 1, 1914, 38 Stat., 680, by the Secretary of Commerce authorizing the allowance to an employee of a per diem for the period of travel, including periods on vessels for which the price of passage includes meals and berth, are within the terms of said act and, in the absence of general regulations issued under said act prohibiting such allowance, payment thereof may be
made in accordance with the travel orders. Decision by Comptroller General McCarl April 14, 1923:
Ward T. Bower and Joe L. Baker have requested review of settlement No. S-33362, dated February 17, 1923, wherein was allowed $364.04 and $276.24 on account of their claims of $500.04 and $408.24, respectively, for subsistence and actual necessary expenses incurred during the months of October, November, and December, 1922, while traveling on official business pursuant to orders dated September 28, 1922, approved by the Assistant Secretary of Commerce. Of the respective amounts claimed, $136 and $132, representing charges for per diem in lieu of subsistence while traveling on steamers, were disallowed for the reason that paragraph 75 of the travel regulations provided that: “Employees traveling on steamers where the cost of ticket includes meals and stateroom accommodations will not be entitled to per diem in lieu of subsistence for the time they are on such steamers."
The travel orders in question specifically provided that: A per diem of $4.00 will be allowed in lieu of actual subsistence, including periods on vessels for which the price of passage includes meals and berth.
Such per diem allowance in lieu of actual expenses for subsistence was authorized under the provisions of section 13 of the act of August 1, 1914, 38 Stat., 680, as follows:
That the heads of executive departments and other Government establishments are authorized to prescribe per diem rates of allowance not exceeding $4 in lieu of subsistence to persons engaged in field work or traveling on official business outside of the District of Columbia and away from their designated post of duty when not otherwise fixed by law.
The regulation in question was promulgated July 1, 1913, and claimants urge that it had no connection with the act of August 1, 1914; that the action of the department in authorizing per diem in lieu of subsistence to them while traveling on vessels where the cost of the ticket included meals and berth, was not an attempt to waive the regulations made in pursuance of a statute, but was the exercise of a discretion placed in the executive departments by the act of August 1, 1914.
It appears that certain appropriation acts for matters under the Department of Commerce made specific provision for the payment of a per diem to be subject to such rules and regulations as the Secretary of Commerce may prescribe” and that the regulations in question were made pursuant to such acts.
It is stated that no general regulations have been issued by the Secretary of Commerce with respect to the act of August 1, 1914, but employees of certain bureaus and individuals of others, were from time to time, in the discretion of the Secretary, authorized to travel with such allowance. The head of the department is not restricted in the manner in which he shall exercise the power therein conferred. He may do so by general regulation or by special authorization in individual cases, issued prior to the commencement of the travel directed under such special authorization. 22 Comp. Dec., 601.
The orders directing the travel in question specifically authorized the payment of a per diem of $4 in lieu of actual subsistence including periods on vessels for which the price of passage included meals and berth, and accordingly claimants are entitled to receive such payment while necessarily traveling on vessels in pursuance of such orders.
Upon review of the matter the settlement is revised and $136 is certified for payment to Ward T. Bower and $132 for payment to Joe L. Baker, in addition to the amounts of $364.04 and $276.24, respectively, allowed by the settlement. A supplemental certificate will issue for $136 and $132 and the checks heretofore issued are returned to the claimants.
DISABILITY COMPENSATION-INJURIES SUSTAINED BY EX
SOLDIER WITHIN THREE YEARS AFTER DISCHARGE.
The provision of the act of March 4, 1923, 42 Stat., 1522, that an ex-service
man shown to have a neuropsychiatric or active tuberculosis disease within three years after separation from active military or naval service will be presumed to have acquired his disability in the service, has no applicatio to a case in which the disease is known to have been not of service origin but to have been incurred at a definite time and place after separation from the service and did not constitute an aggravation of any prees.
isting disease or injury of service origin. Comptroller General McCarl to the Director, United States Veterans' Bureau, April 16, 1923: I have your letter of April 7, 1923, as follows: Edwin A. Anderson was discharged from the military service of the United States April 8, 1919, with no disability, and the military records do not show that he was given medical treatment while in the service. On August 2, 1919, he was injured in an automobile accident, receiving a fracture of the spine, which resulted in the crushing of the spinal cord, causing paralysis in both legs and paralysis of the bladder and rectum. Medical examination made February 12, 1923, shows that the claimant is still suffering from paralysis due to traumatic myelitis resulting from fracture of the 11th and 12th dorsal vertebra.
In section 300 of the war risk insurance act, as amended by the act of March 4, 1923, it is provided :
“That an ex-service man who is shown to have a neuropsychiatric disease or an active tuberculosis disease developing a 10 per centum degree of disability or more in accordance with the provisions of subdivision (2) of section 302 of the war risk insurance act, as amended, and such showing was also mace upon examination by a medical officer of the Veterans' Bureau or by a legally qualified physician made within three years after separation from the active military or naval service of the United States, shall be considered to have ac quired his disability in such service or to have suffered an aggravation of a preexisting neuropsychiatric disease or tuberculosis, in such service.
In this case the medical officers of the bureau are of the opinion that the organic injury to the central nervous system must be considered as a neuro psychiatric disease. The case would appear, therefore, to be covered by the proviso in section 300 of the war risk insurance act, above referred to.
Your decision is requested whether compensation is payable in this case.
The question whether in this case the condition resulting from the injury to the spine constitutes a neuropsychiatric disease is one of medical opinion and diagnosis for determination by the Director of the Veterans' Bureau. If the director determines that a neuropsychiatric disease exists, the question for decision by this office is whether the amendment of March 4, 1923, 42 Stat., 1522, authorizes an award of compensation to the ex-service man notwithstanding that the injury which is known to have been the originating cause of the disease was not suffered by him until after his discharge from the service.
Following the language quoted in your letter the amendment continues: but nothing in this proviso shall be construed to prevent a claimant from receiving the benefits of compensation and medical care and treatment for a disability due to these diseases of more than 10 per centum degree (in accordance with the provisions of subdivision (2) of section 302 of the war risk insurance act, as amended) at a date more than two years after separation from such service, if the facts of the case substantiate his claim.
It is clear, I think, that the purpose and intent of this statute was not to give compensation for these diseases originating after discharge from the service, but only to prescribe a rule of evidence establishing a presumption of service origin if the disease develops 10 per cent disability within three years after separation from the service, and the contrary presumption if the required percentage of disability is not developed within three years. Either presumption may be overcome by affirmative proof to the contrary.
If the director shall find in the instant case that the disease was caused by the accidental injury of August 2, 1919, and was not merely aggravated or activated by the said injury, such finding will be conclusive proof that the disease was not acquired in or aggravated by his military service, and no compensation award will be authorized, notwithstanding the amendment of March 4, 1923. If, on the other hand, conditions are such as to indicate that there was a diseased condition existing prior to the injury the amendment establishes a presumption that such preexisting disease was of service origin. Award of compensation should be governed accordingly.
MILEAGE ON TRAVEL FROM SUBURBAN DUTY STATION-OFFI.
CERS OF THE PUBLIC HEALTH SERVICE.
Official travel by officers of the Public Health Service for the purpose of mileage
begins and ends at the railroad station within the limits of their post of duty at which they actually begin and terminate their journey, when furnished free transportation by Government conveyance between such station and their place of duty located in the suburbs and adjacent to a suburban railroad station.
Decision by Comptroller General McCarl to the Secretary of the Treasury, April 17, 1923:
The Secretary of the Treasury requested March 23, 1923, review of settlement No. T-13496 of the accounts of J. L. Summers, disbursing clerk of the Treasury Department, wherein was disallowed credit for 80 cents claimed by him as a payment to A. H. Pierce, surgeon (R), Public Health Service, of 5 cents a mile for 16 miles of travel from West Roxbury to Boston, Mass., and return. The disallowance was made on the ground that the right of an officer to inileage when traveling under orders away from his official post of duty begins and ends with the railroad station in the city in which the post of duty is located.
The Surgeon General of the Public Health Service, August 22, 1922, authorized the medical officer in charge of the United States Veterans' Hospital No. 44, at West Roxbury, Mass., to transfer three merchant seamen from thence to St. Elizabeths Hospital, in Washington, D. C., with reimbursement to the commissioned attend
ants of traveling expenses" at the rate allowed by law for necessary travel.” The medical officer in charge, September 9, 1922, directed Surg. A. H. Pierce, one of his subordinates, to “proceed from U. S. Veterans' Hospital No. 44, West Roxbury, Mass., to Washington, D. C.,” accompanied by an attendant, and upon delivery of the sea. men to the St. Elizabeths Hospital to return to his proper station. Doctor Pierce complied with his orders, and under section 12 of the act of June 10, 1922, 42 Stat., 631, transportation being furnished by the Government, was paid 5 cents a mile for the official distance of 934 miles from West Roxbury to Washington and return. It appears that the veterans hospital in West Roxbury is located 8 miles from the railroad station in Boston; that West Roxbury is within the municipal limits of Boston; that West Roxbury is served by a railroad station, but that on account of the condition of the seamen and the time involved in making train connections from West Roxbury with trains from Boston to Washington, Government transportation, presumably in a taxi or bus operated by the hospital, was furnished for the travel from the hospital to Boston. In the audit of the accounts of the disbursing officer credit for 80 cents, being mileage at the rate of 5 cents a mile for the 16 miles involved, was disallowed on the ground that the right to mileage began and ended at the railroad station in Boston.
Mileage is a reimbursement or commutation of truveling expenses, United States v. Smith, 158 U. S., 350, and the theory of the law in allowing mileage is to provide for expenses necessarily incurred in the performance of travel. Williams v. United States, 47 Ct. Cls., 186. The travel here was not repeated travel within the meaning of section 12 of the act of June 10, 1922, 42 Stat., 631. See 2 Comp. Gen., 72. It was travel to and from the railroad station within the municipal limits of Boston in a Government conveyance, and there is no allegation that any expenses were necessarily incurred when so traveling. While consideration of the health of the seamen might have made it advisable to take the train at Boston instead of at West Roxbury, no such consideration can be urged as to the return journey. No expenses having been incurred for the 16 miles of travel, the adoption of the contention would make mileage cease to be a reimbursement and become an emolument. See 1 Comp. Gen., 171; 2 id., 427; Hutchins v. United States, 47 Ct. Cls., 186.
Upon review of the matter no differences are found and the settlement is sustained.