Part I

PENSION DECISIONS

[Page 1 to page 355, inclusive. See index at page 481]

EPIFANIO VALENZUELA

Decided July 31, 1930

Facts

Veteran appeals from action denying pension on account of asthma. show this disability was found by naval authorities shortly after enlistment and a history was recorded of the condition being present for several years.

Held: Although a presumption of soundness at enlistment is to be indulged, it may be overcome as in this case by convincing evidence. Even though not noted at enlistment, it may have been latent and even if latent the Government is not bound by the failure of the examiner to find it.

HINES, Administrator of Veterans' Affairs:

This appeal was made to the Secretary of the Interior prior to the Executive order of the President of July 21, 1930, effecting a consolidation and coordination of all governmental activities affecting war veterans, as authorized by the act of July 3, 1930 (46 Stat. 1016). Pursuant to the provisions of such act the appeal is considered and acted upon by the Administrator of Veterans' Affairs.

Epifanio Valenzuela enlisted in the Navy for a term of four years, November 21, 1905, and served until November 20, 1909, when he was honorably discharged by reason of expiration of his term of enlistment.

The sailor filed claim for pension July 10, 1928, under the provisions of sections 4692 and 4693, Revised Statutes, alleging disability caused by asthma incurred in the service and in the line of duty.

The claim was rejected by the Commissioner of Pensions, November 3, 1928, on the ground that the alleged asthma existed prior to the sailor's enlistment, as shown by a report from the records of the Navy Department.

August 20, 1929, claimant filed additional evidence with a view to a reopening of the claim for further consideration. Reopening

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was denied by the commissioner September 16, 1929, on the ground that the additional evidence filed is vague, indefinite, and inconclusive in effect, and can not be accepted to controvert the report from the records of the Navy Department.

From the last-named action claimant has appealed.

It appears from the records of the Navy Department that the claimant was admitted to a naval hospital April 23, 1909. He was then afflicted with bronchitis. He stated at that time that he had had slight asthmatic attacks for several years; that they were present at the time or shortly after he enlisted. The report of the medical officer states that the asthmatic condition is certainly not in the line of duty; that the tendency and condition of asthma existed prior to enlistment. The sailor was discharged from the hospital and returned to duty May 21, 1909. The records do not show that he received subsequent treatment for any ailment.

At the time the claim was rejected there was no evidence on file other than the reports from the records of the Navy Department. On such evidence rejection of the claim was proper.

The additional evidence filed by claimant after rejection consists of the affidavits of two persons who testified that they knew him before his enlistment, and that prior thereto he was in good health and free from every kind of illness. Their testimony can not be accepted to overcome the records of the Navy Department. As stated those records show that claimant himself stated that he had been afflicted with asthma for several years, and that an asthmatic condition existed at or shortly after enlistment.

To entitle claimant to pension it is incumbent on him to show that the disease which he alleges disables him was incurred during his service. His own statement shows that it was not.

It is urged that, if claimant was afflicted with asthma at the time he enlisted, the medical examination then made would have disclosed that fact and that, if disclosed, he would not have been accepted. At the time the disease probably was latent; present but not susceptible of discovery. Even if it were susceptible of discovery, and was not discovered, the Government is not bound by failure of the examiner to find it.

Soundness at enlistment is presumed, but such presumption may be rebutted. It is rebutted by the records of the Navy Department, and by claimant's own statement as shown thereby.

The commissioner rightly refused to reopen the claim for further consideration. Such action of refusal is affirmed.

JOHN A. DONOVAN

Decided August 1, 1930

Claim for pension for neuropsychiatric condition denied on ground that it pre-existed enlistment. Evidence shows admission as to "spells in childhood but also indicates the condition came on after injury by fall from a horse.

Held: Since present type of disability could readily ensue from head injury it is held to be due to service.

HINES, Administrator of Veterans' Affairs:

This appeal was made to the Secretary of the Interior prior to the Executive order of the President of July 21, 1930, effecting a consolidation and coordination of all governmental activities affecting war veterans, as authorized by the act of July 3, 1930 (46 Stat. 1016). Pursuant to the provisions of such act, the appeal is considered and acted upon by the Administrator of Veterans' Affairs.

John A. Donovan enlisted in the Army July 12, 1914, was assigned to Troop A, Sixth United States Cavalry, and served until April 8, 1917, when he was discharged on a certificate of disability. The soldier filed August 9, 1928, claim for pension under the provisions of sections 4692-4693, Revised Statutes, alleging disability of pains in the head and loss of memory due to an injury sustained in service and in the line of duty.

The claim was rejected by the Commissioner of Pensions August 23, 1929, on the ground that the soldier was manifestly unable to connect any existing disability from the pains in head and loss of memory, alleged as results of kick on head by a horse, with his military service.

With a view to a reopening of the claim for further consideration, the soldier filed additional evidence December 4, 1929. The claim was given further consideration and, April 3, 1930, was again rejected by the commissioner, that part based on injury of head (kick of horse) on the ground that a ratable degree of disability from that cause had not been shown to exist since the date of the filing of the claim; and that part based on disease of the nervous system, alleged as pains in the head and loss of memory, on the ground that such disability was not incurred in the service and in the line of duty but existed prior to enlistment, as shown by a report from the records of the War Department. From such rejection, claimant has appealed.

It appears from the evidence that in February or March, 1916, claimant while on patrol duty was riding a horse which became entangled in some barbed wire which was lying in the road. The

horse became unmanageable, and claimant was thrown or fell to the ground, resulting in an injury to his head which rendered him unconscious. Claimant was taken to camp in an ambulance and was treated by an Army surgeon.

Reports from the records of the War Department do not disclose that claimant received medical treatment of any character from the date of his enlistment to January 28, 1917, on which date he was admitted to the camp hospital at Marfa, Tex., and there retained until February 7, 1917. His disease was diagnosed as hysteria major, in line of duty. He was admitted to the camp infirmary at Glenn Springs, Tex., March 1, 1917, for observation and treatment, and was there detained until March 3, 1917. On the last-named date he was admitted to the camp infirmary at Marathon, Tex., and was there detained until March 4, 1917. While at the infirmary at Marathon his disease was diagnosed as epilepsy, and a record was made that claimant stated he "had spells as a child," and that the disease was not incurred in the line of duty. March 4, 1917, claimant was readmitted to the camp hospital at Marfa, and there retained until discharged from the service April 8, 1917. While at such hospital his disease was diagnosed as hysteria major, and it was recorded that the disease existed prior to enlistment. The surgeon's certificate of disability, upon which claimant was discharged, shows that at the date of his discharge he was afflicted with hysteria major, was neurotic, his nervous system was unstable, and he was unreliable in the performance of military duty. It was also certified that the disability of claimant existed prior to enlistment, and was not incurred in the line of duty.

The War Department records further show that while the claimant was at the camp hospital at Marfa the first time the following statement was recorded as having been made by him:

In July, 1916, patient was lying in his bunk when he suddenly gave a yell and started for the door,-why, he does not know. Struggled with his guard, and fought; was unconscious for several minutes, and woke up feeling sore; did not bite his tongue or lose control of his sphincters. Had a second attack in August, and none until January 25, when he had a third attack; on 26th he had three in succession of which he was unawares; has no memory of these attacks; has never injured himself; head feels dizzy; has shooting pains through head.

Evidence was submitted by claimant tending to show that prior to his enlistment he was not afflicted with the malady for which he was treated during his service. Such evidence is vague and indefinite and it alone can not be accepted as proof of soundness prior to enlistment.

The conclusion of the medical officers, who diagnosed the soldier's disease, that it existed prior to his enlistment seems to be based on