claimant states that the varicocele caused him no appreciable inconvenience and does not bother him now.

Supplemental report from The Adjutant General's Office, June 15, 1928, relative to claimant's medical history shows that on October 25, 1916, he was treated for "hernia, direct, incomplete, left, reducible, accidently incurred by lifting a tub of water while on duty at Camp Cotton, El Paso, Tex., August 24, 1916, in line of duty." A similar showing was made in a further report from The Adjutant General, June 14, 1930, followed by a statement that the ward surgeon did not concur in the diagnosis, but that the soldier's abnormality was a chronic varicocele.

The subsequent history of the case, as shown by the evidence obtained during a special investigation of the claim, in which Doctor Wilson, late captain of the company of which the soldier was a member, testified to the incurrence of the hernia in the manner alleged and that claimant was sent to the general hospital at Fort Bliss, Tex., for remedial operation, but that the surgeon refused to perform such operation. The refusal was no doubt caused by reason of an active inflammatory condition which would logically immediately follow the injury.

Verification of the evidential facts is found in the testimony of Doctor Kerr, who also was a member of the company, and that of Doctor Fenner, regimental surgeon, and in the official medical examination accorded the claimant November 20, 1928. The report of the examining board discloses the left hernia claimed for, and in addition right inguinal hernia was also present indicating predisposition in the case. The examination also disclosed the fact that no varicocele was present. Furthermore, the physical examination at muster out showed that a bubonocele, left, then existed.

From the evidence on file, service connection of the left inguinal hernia as alleged is clearly established and it is so held.

The bureau action of rejection is reversed and the case remanded. for readjudication in harmony with this opinion.

EULA C. PATTERSON, WIFE OF ZEB B. PATTERSON

Decided October 16, 1930

Appellant protests allowance of one-half pension to wife. She filed claim first under act of August 8, 1882 (22 Stat. 373), alleging imprisonment of husband. Special examination was made. On May 10, 1930, claim was rejected, the husband having been released from prison May 2, 1930. Claim under act of March 3, 1899 (30 Stat. 1379), by wife was, however, allowed July 31, 1930, by commissioner from which action this appeal is prosecuted. Facts show former soldier was granted pension on July

22, 1929, payments to be made from February 13, 1929. On February 13, 1929, he was in prison and so continued until May 2, 1930, and, therefore, could not desert after he became a pensioner until released from prison. Less than six months from date of release from prison had expired when commissioner accepted declaration of wife showing desertion several years before.

Held: Action of commissioner in allowing wife's claim was erroneous.

HINES, Administrator of Veterans' Affairs:

Zeb B. Patterson, a Spanish war veteran, is a pensioner under the act of May 1, 1926 (44 Stat. 382).

Eula C. Patterson filed October 2, 1929, claim under the act of August 8, 1882 (22 Stat. 373), for payment to her of his pension on the ground that she was then his lawful wife, and that he was then imprisoned for an offense against the laws.

Evidence in support of her claim was submitted by the claimant, the soldier submitted evidence, and the claim was made the subject of special examination pursuant to which the depositions of claimant and others were taken by a representative of the Pension Bureau.

Thereafter, and on May 10, 1930, it appearing that the pensioner had been released from imprisonment May 2, 1930, the Commissioner of Pensions held the claim for rejection, and on May 22, 1930, accepted the declaration for the claim under the act of August 8, 1882, and the evidence then on file, as a claim under the act of March. 3, 1899 (30 Stat. 1379), and so advised pensioner and claimant.

Thereafter claimant and the pensioner filed additional evidence, and the claim was duly considered.

The claim was approved for admission by the commissioner July 31, 1930, on the stated ground that the pensioner deserted claimant, his lawful wife, who is a person of good moral character and in necessitous circumstances.

It is provided by the act of March 3, 1899 (supra) :

*

That in case a resident pensioner of the United States shall for a period of over six months desert his lawful wife, she being a woman of good moral character and in necessitous circumstances * *, the Commissioner of Pensions is hereby directed, upon being satisfied by competent evidence of such desertion, to cause one-half of the pension due or to become due said pensioner during the continuance of such desertion to be paid to the wife

*

*

The soldier became a pensioner of the United States July 22, 1929. At that time, and at the time his pension was to commence, namely, February 13, 1929, he was serving a sentence for burglary at the State prison farm near Milledgeville, Ga. He continued to serve such sentence there until his discharge May 2, 1930. Because of his imprisonment there could have been no desertion by him of the claimant after he became a pensioner so long as such imprisonment continued. While he might after being discharged desert his wife, such desertion

must have continued for more than six months to entitle her to onehalf of his pension. Less than six months from the date of his discharge from imprisonment had expired when, on May 22, 1930, the declaration of claimant was accepted by the commissioner as a declaration under the act of March 3, 1899. Such acceptance was, therefore, premature and should not have been made for the reason that desertion, if any, had not continued for the required period of time. The evidence of the claimant as to desertion of her by the soldier is that it occurred several years before he became a pensioner. Desertion prior to the date he became a pensioner does not entitle her to one-half of his pension. The law is plain, the desertion must be made by one who is a pensioner, not by one who subsequent to the desertion becomes a pensioner.

It follows that the action of the commissioner in approving the claim for admission was erroneous for the reason that there was no allegation or proof of desertion continuing for more than six months after the soldier became a pensioner.

If following the pensioner's discharge from his term of imprisonment he has by acts of commission or omission been guilty of legal desertion of claimant, she may, if and when such desertion has continued for more than six months, file a new application under the firts proviso of the act of March 3, 1899.

The action appealed from is reversed, and the commissioner is directed to dismiss the claim considered as filed under the act of March 3, 1899.

FRANK E. BORST

Decided October 16, 1930

"Manual Labor" as used in pension laws includes clerical work, and total inability to earn support by reason of disabilities is clearly not shown.

HINES, Administrator of Veterans' Affairs:

Frank E. Borst, the claimant herein, while a pensioner under the act of May 1, 1926 (44 Stat. 382), at $40 per month, three-fourths disability, filed March 20, 1930, a claim for increase under said act, wherein he alleged increase of disability on account of age, hay fever, and recurrent asthma, and all disabilities set forth by affidavits now on file. He also alleged that his disabilities have reduced the body vigor to an extent totally to unfit him for manual labor, and his mental energy to a degree to unfit him for any position requiring any mental strain.

This claim was rejected May 6, 1930, on the ground that claimant is not shown to be totally disabled. Also reopening of the claim was denied in August, 1930, for the reason that the affidavit of Doctor

Skaggs is not deemed sufficient for the purpose, as it fails to show a degree of inability to earn support by manual labor warranting a rate under the act invoked in excess of $40 per month or three-fourths disability.

An appeal was entered September 22, 1930, wherein claimant states evidence has been filed showing that he is totally disabled for the performance of manual labor.

Claimant is now a pensioner under the act of June 2, 1930 (46 Stat. 492), at $50 per month for three-fourths disability.

The official medical examination under the claim now in question was made April 10, 1930, and the report thereof showed claimant's age to be 56 years; height 67 inches; weight 170 pounds. Present occupation: Clerical. Pulse rate was 72, respiration 18, blood pressure 140/86. His general appearance and muscular development were noted as fair. Carriage normal; gait lame. Vision was fairly good, being 20/30 in each eye. Heart was enlarged, there was no valvular lesion or edema, its action was regular and normal in force. Throat and lungs were free from signs of disease. Claimant gave a history of taking a physic once a week. Except for loss of a few teeth, digestive system was normal. Rheumatism was said to be muscular. There was tenderness over the back on pressure, and stooping was limited and apparently painful. The surgeon further stated: "There has been a compound Pott's fracture of the right ankle. Comparative measurements right ankle 104 inches, left ankle 10 inches. Three inches above malleolus: Right 911⁄2 inches, left 911⁄2 inches. There is a 25 per cent functional loss of this ankle. Movements appear to cause pain. This is the cause of lameness. On acount of the above disabilities this claimant is disabled threefourths from earning a living by manual labor and is entitled to $40 per month."

The examining surgeon did not recommend an increase of pension, and it seems manifest that the ailments as found and described are not such as would render the claimant wholly unable to earn support by manual labor, which term, "manual labor," in the administration. of pension laws, has long been held to mean work of a useful character performed with bodily exertion or muscular effort. It does not necessarily mean hard work, as with pick and shovel. It hardly seems necessary to add that clerical work is of a useful character requiring some muscular effort in its performance and is, therefore, for pensionable purposes, manual labor.

With reference to the affidavit of Doctor Skaggs, filed June 28, 1930, wherein he claims to have examined claimant on June 18, 1930, and found ailments that totally and permanently disabled him, it may be observed that inasmuch as the disabilities described by him

were not found to exist when claimant was officially medically examined in April, 1930, it seems reasonable to conclude that said ailments were of a temporary character and therefore not pensionable under the act of May 1, 1926.

The action complained of, being clearly warranted by the evidence on file, is affirmed.

FRED DAVIS

Decided October 16, 1930

Evidence shows appellant discharged for "irritable heart" and indicates shortly prior thereto infection from vaccination.

Held: It is medically sound to admit relationship between the infection and the heart condition. Action reversed.

HINES, Administrator of Veterans' Affairs:

Under the date of March 19, 1928, Fred Davis filed claim for pension under the act of May 1, 1926 (44 Stat. 382), based on partial inability to earn a support, due to certain enumerated disabilities. The claim was rejected by the Commissioner of Pensions May 11, 1928, on the ground that the War Department report shows claimant. served less than 90 days and that he was not discharged for disability incurred in service and line of duty.

Additional evidence was subsequently furnished for the purpose of securing a reopening of the claim for further consideration. Reopening was twice refused on the ground of insufficiency of evidence.

Another claim was filed August 12, 1929, under the same act, in which additional disabilities were alleged, and was dismissed by the bureau on the ground that it was a duplicate of the previously rejected claim. From that action this appeal was entered.

The claimant in this case, as shown by the records of the War Department, enlisted in a military organization on October 3, 1899, and was honorably discharged by telegraphic instructions on the 19th of the same month. Two days after induction into the service claimant submitted to vaccination, but the medical records are silent as to additional information relative thereto.

A further report from The Adjutant General, War Department,

'shows:

that under date of October 14, 1899, the commanding officer, 40th U. S. Vol. Inf., recommended the discharge of Fred Davis on account of "irritable heart." His recommendation was forwarded through military channels, approved, and on October 16, 1899, the Assistant Secretary of War directed the discharge of Davis, with travel pay, as unsuited to the service, and he was accordingly so discharged on October 19, 1899. Nothing has been found of record to show any way to indicate that the disability for which he was recommended for discharge was incurred in the service in line of duty.