the act of July 14, 1892 (27 Stat. 149). In other words the assistance required by this pensioner, as shown by the evidence, is too slight to be regarded as either regular aid and attendance or as frequent and periodical aid and attendance. In fact, attendance is not shown to be required by pensioner at this time.

No material mistake of fact or error of law appearing in the decision in question, this motion is overruled.

ANNIE PASSANT, WIFE OF JOSEPH PASSANT

Decided August 7, 1930

Appellant filed claim for one-half pension of veteran under act of March 3, 1899 (30 Stat. 1379). It was rejected and notice sent with copy of rules. No appeal filed in accordance with rules 13 and 14 within time limit. Writ applied for under rule 10.

Held: No sufficient excuse for failure to comply with rules shown.

HINES, Administrator of Veterans' Affairs:

The application for a writ of certiorari herein having been 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), is, pursuant to the provisions of such act, considered and acted upon by the Administrator of Veterans' Affairs.

It appears that Annie Passant filed March 17, 1930, under the provisions of the act of March 3, 1899 (30 Stat. 1379), claim for one-half of the pension of Joseph Passant, late of Company G, First Texas Infantry, and a pensioner of the United States, alleging that the soldier deserted her, his lawful wife, and that she is a woman of good moral character and in necessitous circumstances.

The claim was approved for rejection by the Commissioner of Pensions May 24, 1930, and by letter dated the same day claimant was so advised. In such letter it was stated:

Either party is allowed, under rule 13, thirty days from date of mailing of this notice, to appeal from said bureau action to the Secretary of the Interior, the appeal to be accompanied by this notice and due proof of service of copy of appeal upon the appellee, as required by rule 14. Failure to comply with rule 14 will not operate to enlarge the time within which to appeal. Copy of rules is inclosed.

Claimant filed an appeal June 23, 1930. By letter dated June 26, 1930, the commissioner, returning the appeal and papers filed therewith, advised claimant that the appeal might not be entertained as a valid appeal because of failure to serve the appellee or his attorney of record with a copy thereof.

On the filing of the claim payment to the soldier of one-half of his pension was suspended. On June 26, 1930, because of the failure to perfect a valid appeal payment of the amount held in suspension was directed to be made, and it was also directed that the full amount of his pension be paid to the soldier in future.

Rule 10 of the Rules of Practice in Pension Appeals provides:

In proceedings before the commission in which he shall decide that a party has no right to appeal to the Secretary or that said appeal may not be entertained under the provisions of the foregoing rules, such party may apply to the Secretary for an order directing the commissioner to certify such action, together with the record in the case, to the department, and such application shall be in writing, under oath, and shall fully and specifically set forth the grounds upon which the same is based. If upon a hearing of the application the Secretary shall grant a writ of certiorari under this rule, the jurisdiction of the department shall be ample for the correction of any error appearing in the record.

Invoking the provisions of rule 10 claimant filed July 15, 1930, what may be treated as an application for a writ of certiorari to the commissioner directing certification of the record. The purpose of such a writ is that it may be determined from the record whether the action of the commissioner in rejecting the appeal was warranted. The rule requires that the applicant shall in the application for the writ fully and specifically set forth the grounds upon which it is based, which means that the application shall show sufficient excuse for not complying with the rules in endeavoring to appeal. No excuse is shown. In the application filed, it is not claimed that a copy of the appeal was served on the pensioner, and no reason is stated why it was not so served. The pensioner had no attorney of record.

The application is denied. To grant it and consider the record as on appeal would not avail claimant for the reason that because of her dereliction that part of the pension of the soldier retained under suspension has been paid to him, and payment to him of full pension has been resumed.

JAMES FOLEY

Decided August 11, 1930

Appellant, who was receiving pension under general law, applied May 13, 1929, for allowance under act of March 3, 1927 (44 Stat. 1361), and was found after examination on July 10, 1929, entitled to pension of $50 per month for total inability to perform manual labor. He contends he is entitled to increase from December 22, 1928, date of last examination under general law.

· Held: Bureau of Pensions is without authority to grant benefits under act of March 3, 1927, prior to date of filing claim therefor.

HINES, Administrator of Veterans' Affairs:

This appeal was made to the Secretary of the Interior and was filed July 22, 1930. The Executive order of the President of July 21, 1930, effected 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.

History of this claim shows that James Foley whose service extended from June 25, 1890, to September 24, 1893, was allowed pension under the general law, sections 4692 and 4693 Revised Statutes, at $12 per month commencing April 1, 1896. The rate was increased to $24 per month from August 12, 1925, and a further increase to $30 per month was allowed from December 22, 1928, date of medical examination made by an official board of surgeons, the report of the board containing a description of physical conditions from disease of lungs and heart which warranted the increased rate.

On May 13, 1929, claim was made for pension allowance under the act of March 3, 1927 (44 Stat. 1361). Claim was allowed on July 10, 1929, at the rate of $50 per month, after a further medical examination of the claimant which disclosed that he was totally disabled for performance of manual labor.

Under the provisions of the act of March 3, 1927 (44 Stat. 1361), it is mandatory that commencement of pension in original claims thereunder, where allowed, shall be from date of filing claim. The bureau action was in strict compliance with this provision.

It is contended in the appeal filed July 22, 1930, that the commencement of pension under the latter act should have been from the date of previous medical examination held under claim for the general law increase.

The Bureau of Pensions is without authority of law to begin pension under the act of March 3, 1927, prior to date of filing claim therefor. Further discussion is not warranted.

The bureau action complained of is without error and the action is accordingly affirmed.

ANTON C. FREDERIKSEN

Decided August 13, 1930

Claimant alleges on appeal that his pensionable disability rated at $72 per month is sufficient to entitle him to 100 per cent rating. Facts show partial paralysis of right arm and leg but indicate ability to walk without cane and pick up small objects.

Held: Total disability of the claimant has not been established, nor has total disability of his arm or leg been shown. The present rating which is mani

festly adequate, is based on assumption that "regular personal aid and attendance of another person" as defined in act of March 4, 1890 (26 Stat. 16) is necessary.

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.

On July 3, 1929, Anton C. Frederiksen, who is now a pensioner under the general law, sections 4692 and 4693 Revised Statutes, as amended by the act of March 4, 1890 (26 Stat. 16), at $72 per month for disability designated as paralysis of right side, filed a claim for increase wherein he alleged that on account of the disability for which he is now pensioned, he believes himself to be entitled to an increase of pension.

This claim was rejected by the commissioner May 5, 1930, on the ground that the evidence on file fails to show that total disability of right arm, hand, leg, or foot exists by reason of the pension cause, paralysis of right side.

An appeal was entered May 12, 1930, wherein it is contended in effect that claimant is 100 per cent disabled for earning subsistence as indicated by the evidence now on file in the case.

In support of the claim there was filed July 3, 1929, the affidavit of claimant's physician, wherein he states that there is an incomplete spastic paralysis of right arm, muscles supplied by the ulna nerve being in a state of almost complete flaccid paralysis, and all muscles of right arm markedly atrophied. Incomplete paralysis of right leg of spastic type also was present. Reflexes were exaggerated and all muscles atrophied. He further states: “He is able to walk by keeping the knee stiff, on a level plane only. There is complete disability from the standpoint of useful activity." Evidence secured by special examination of the case in March and April, 1930, shows that claimant makes use of the right foot and leg in walking; that he can walk about the house without the use of cane, but when going on the street for a block or two he uses a cane; that he also has some motion in right arm and hand, but little strength; that is, at the request of the inspector, claimant raised his right arm higher than his head and had sufficient use of hand to "pick up a penny match box with some effort," but could not grasp a small object such as a pencil and had not sufficient strength to lift a chair. When asked as to ability to move right leg, claimant got up from his chair and moved his leg.

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In view of the evidence on file it can not properly be held that claimant's right leg, foot, arm, or hand is totally disabled. By holding his right knee stiff claimant makes use of the right leg and foot in walking, indicating that he still has some control and use of these parts. It also seems manifest that so long as claimant can raise his right arm above his head and can pick up an object of any kind with right hand, there is not total disability of the arm or hand. It hardly seems necessary to add that claimant has not lost a leg, foot, arm, or hand or been totally disabled thereby, and is, therefore, not entitled to the benefits of the act of February 11, 1927 (44 Stat. 1085), which provides a rate of $80 per month for those who shall have lost one hand or one foot in the military or naval service of the United States, and in line of duty, or have been totally disabled therein; and $90 per month for those who in like manner shall have lost an arm above the elbow or a leg above the knee, or have been totally disabled therein. Nor is claimant entitled to the benefits of the act of May 5, 1927 (44 Stat. 396), which provides among other things $75 per month for loss of an arm at or at any point above the elbow, or a leg at or at any point above the knee, or have been totally disabled therein; $85 for those who in like manner have lost one hand or one foot, and in addition thereto shall have lost a portion of the other hand or foot; and $100 per month for those who shall have lost one hand and one foot or shall have been totally disabled therein.

With reference to the rate of $72 per month now received by the pensioner, it may be observed that this allowance was made under the act of March 4, 1890, supra, which provides $72 per month pension for those who are "so totally and permanently helpless from injuries received or diseases contracted in service and line of duty as to require the regular personal aid and attendance of another person." Manifestly the rate of $72 per month is adequate for the degree of disability due to paralysis of right side as shown to exist in the case of this claimant, and no apparent injustice was done him in rejecting his claim for increase on the grounds stated. Such action is affirmed.

MARY BLAND, AS WIDOW OF ISAIAH BLAND

Decided August 13, 1930

Appellant filed claim under act of May 1, 1920 (41 Stat. 585), alleging she is the widow of pensioner. Evidence shows she cohabited with veteran from 1893 in State of Mississippi to date of death. Prior to 1892 common law marriages were valid in that State. By code of that year they were no longer recognized. In 1906 code was amended to recognize such marriages after April 21, 1906.