ship. He there reported to the surgeon a dislocation of his right shoulder, stating that while he was driving an automobile it turned. over and pinned him under it, and that he was cared for by a civilian physician, who replaced the shoulder. May 22, 1923, he was sent to a naval hospital for treatment, where he stated that he had been unable to lift weight with his right hand since July 4, 1922.

From the foregoing it may be reasonably deduced that the date on which claimant incurred his injury was July 4, 1922, and not as stated by him in his declaration "about July 13, 1922." Claimant does not state that the injury was suffered while returning to duty, and the evidence is clear that it was not. The evidence is equally clear that it was incurred while claimant was on 30 days' authorized leave.

Claimant's leave was of such duration as to require excuse from the performance of his duties and to materially interfere with the discharge by him of his duties. During such leave he was not subject to the command or direction of his superiors, but was entirely on his own responsibility for his acts and conduct. He was not in line of duty, for the reason that he had no duty to perform. His case is not analogous to that of Sidney Floyd Love which was the subject of an opinion of the Attorney General dated January 6, 1930 (36 Op. Atty. Gen. 156), in which it was stated that Love's authorized leave having been of such short duration as not to require excuse from the performance of his duties, he should not be held to be not in the line of duty when he was injured during such leave.

Claimant contends that for the reason that the records of the Navy Department, after stating that his injury was incurred while on authorized leave, contain the statement that it was incurred in line of duty, the Commissioner of Pensions is bound by that statement in the adjudication of his claim.

As to whether injuries or disease were incurred in line of duty is to be determined by the facts in each particular case. It is the duty of the commissioner to decide the question himself, and while the opinions of those in the Navy Department or the War Department charged with the duty of reporting to their respective departments whether or not injuries or disease were so sustained are entitled to respect and consideration, yet in the last analysis the commissioner himself must reach a conclusion from all the facts before him.

There is nothing in the record which tends to show in what manner claimant sustained his injury other than the mere statement of claimant that he was driving an automobile which overturned, and that he was pinned under it. There is nothing from which a finding might be made that the injury was the result of an accident. For aught that appears the injury may have been due to a cause for which claimant was responsible, in other words, due to his own fault. If so,

claimant would not be entitled to pension even if the injury were incurred while on duty. It is incumbent on him to prove not only the injury but the manner in which, and the surrounding circumstances under which, it was incurred, that it may be determined whether or not it was due to a cause for which he was responsible.

The conclusion is reached that on the evidence before him the commissioner correctly found that claimant's injury was not incurred in line of duty. It follows that the action of rejection should be, and it is, affirmed.

The claimant should be advised that owing to his service during the period of the World War, it is possible he may have rights under section 11 of the act of July 3, 1930 (46 Stat. 991).

MAY C. JACOBSON, DAUGHTER OF CHRISTIAN JACOBSON, DECEASED

Decided October 17, 1930

Appellant requests review of decision of Secretary of the Interior dated April 17, 1930. No new evidence has been added to the record and, therefore, in accordance with the provisions of the last paragraph of Administration Regulation No. 1, the administrator will not assume jurisdiction to review decisions from the Secretary of the Interior.

HINES, Administrator of Veterans' Affairs:

May C. Jacobson filed September 10, 1926, an application for reimbursement for expenses paid and obligations incurred in the last sickness and burial of her father, Christian Jacobson, who was a pensioner, certificate No. 515695, and who died May 29, 1928. The claim was rejected by the Commissioner of Pensions October 19, 1928. From such action of rejection applicant appealed to the Secretary of the Interior, who, by a decision dated April 17, 1930, affirmed the action of the commissioner. Thereafter applicant filed a motion for reconsideration of such decision, which motion was denied by the Secretary of the Interior May 22, 1930.

There was filed October 11, 1930, what may be considered as an appeal to the Administrator of Veterans' Affairs to review the decision of the Secretary of the Interior.

Administration Regulation No. 1 of the Veterans' Administration, effective August 25, 1930, provides:

No appeal will be considered by the Administrator of Veterans' Affairs to review the decisions of the Secretary of the Interior on pension * * * cases, except, where, upon the basis of new evidence, the case has been reconsidered by the agency having the original jurisdiction * *

No new evidence having been filed in the Bureau of Pensions, and the case not having been reconsidered by the Commissioner of

Pensions on the basis of new evidence, the appeal may not be considered, and it is dismissed.

T. LATIMER BROOKS

Decided October 22, 1930

Appellant contends that disability, appendicitis, followed typhoid, and that he is entitled to increase in pension therefor.

Held: Evidence does not disclose that symptoms of diseased appendix appeared until a considerable time after discharge, and was not present during the attack of typhoid fever. Appendicitis developed more than two years after the attack, and can not be he'd to be the result of typhoid. Veteran is now receiving $25 per month under the act of May 1, 1926 (44 Stat. 382), for ventral hernia.

HINES, Administrator of Veterans' Affairs:

This appeal was made to the Secretary of the Interior subsequent 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. The appeal relates to the action of the commissioner taken in November, 1929, rejecting claim for pension filed October 9, 1901, under the general law, sections 4692 and 4693, Revised Statutes. Rejection was on the ground

that there is no record in the War Department of the alleged appendicitis and effects of operation therefor (covering alleged chronic bowel trouble); no satisfactory evidence on file showing origin thereof in the service and you are manifestly unable to connect any existing disability from that cause with typhoid fever, as alleged or otherwise, with your service in line of duty.

From this action claimant entered an appeal September 3, 1930, in which he states in effect that he was discharged, after having been invalided from active service on September 30, 1898. That at discharge February 13, 1899, he was absent from his command because of disability and his right to medical examination was waived by the War Department, and without his request. That at the time of discharge, he was recuperating from an attack of typhoid fever.

In his application for pension, filed October 9, 1901, claimant alleged that about September 30, 1898, he contracted typhoid fever, which affected his internal organs, and as a result has chronic bowel trouble.

The medical records of the War Department show soldier treated as follows:

Oct. 1, 1898, Malaria; Oct. 1 to 7, 1898, typhoid fever. Diagnosis also shown Malaria; Oct. 7 to Dec. 1, 1898, typhoid fever. Complication; Post typhoid mania. Discharged, Dec. 1, 1898, from hospital.

In the certificate of disability for discharge, the surgeon, after claiming to have carefully examined the soldier stated:

By an attack of typhoid fever followed by Post typhoid dementia, from which T. Latimer Brooks is now suffering and unfits him for military duty.

Because of the soldier's absence from his command medical examination preliminary to his discharge from service, February 13, 1899, was waived.

There is nothing in these records that would indicate an involvment of the appendix as a complication during the attack of fever, or that there was any unusual disease of the bowels present during the fever or period of convalescence while in the service.

Likewise the evidence filed by claimant in July, 1928, more than 29 years after his discharge from the service, contains nothing that would lead to the conclusion that soldier's appendix was diseased at the time of his discharge or thereafter, prior to the fall of 1900 or the spring of 1901. Statements to the effect that soldier's health was 66 very bad" at that time, or that he had the appearance of one in "poor health," or that his "general health conditions," at the time were generally felt to be results of his service, can not be accepted as showing the existence of appendicitis at that time, or as a condition that would lead to the development of such a disease. Nor does the statement of Doctor Gladwin, in affidavit filed July 16, 1928, to the effect that claimant on leaving the hospital in 1898, and to September, 1899, had recurrent attacks of diarrhea with abdominal pains and nausea, and was extremely nervous, and had rheumatic pains in limbs, indicate a disease of the appendix, or a condition that would lead to its development.

Also, the report from the Germantown Hospital records, where claimant was operated on in July, 1901, for appendicitis, filed in July, 1928, contains nothing that would indicate the existence of appendicitis prior to the spring of 1901. That report shows that the soldier was admitted to the hospital June 18, 1901, with symptoms indicative of an acute trouble, diagnosed as appendicitis. The report reads in part as follows:

On June 16, 1901, was attacked with a gnawing pain in the stomach which passed into a cramp. Nausea and vomiting followed. Pain was general all over abdomen. After vomiting pain was more localized in right inguinal region. Tender on pressure * *

Ordinary diseases of childhood. Typhoid fever in the fall of 1898, a severe attack * * *. During March of this year had an attack similar to the present.

July 10, 1901. Distinctly palpable mass in right inguinal region. Mass itself apparently not very sensitive to pressure. There is some tenderness in the inguinal region above mass upon deep pressure.

July 19, 1901-Operation.

In affidavit filed July 5, 1904, claimant stated in effect that after leaving the Pennsylvania hospital in December, 1898, he was treated by Doctor Gladwin, being bothered with bowel trouble, pain and soreness and diarrhea at times. That in the fall of 1900, his trouble became more acute, with periods of intense pain and soreness accompanied by vomiting, terminating in appendicitis, for which he was treated by Doctors Gray and Ringwald; that he recovered from this attack, but was seized again in the summer of 1901, and was operated on in the Germantown Hospital, Philadelphia, in July, 1901. A second affidavit filed in September, 1904, was in essential features similar to the one filed July 5, 1904.

The evidence secured by special examination in 1929 fails to show that claimant presented symptoms at the time of his discharge in 1899, or for some time thereafter, indicative of a diseased appendix. At the time of claimant's official medical examination in March, 1902, signs of a ratable degree of disability other than those due to appendicitis or effects of operation therefor, were not found. The board of surgeons making the examination reported: "We find a ciatrix in the right iliac region one-half by 2 inches in size, inflamed, very tender, and painful throughout the whole iliac region to pressure." Claimant was wearing an abdominal support. There was also noted some tympanites, and the rectum was inflamed.

Clearly the evidence now on file will not support a holding that the appendicitis in the case of this soldier, coming on in the last half of 1900, or the first half of 1901, was due to an attack of typhoid fever in 1898, or was otherwise due to the soldier's military service, which terminated in February, 1899.

Diarrhea from time to time, and soreness of the bowels and a general appearance of poor health at time of discharge from the service and for a time thereafter, as shown by the evidence, can not be accepted as evidence of appendicitis. Had the appendicitis appeared during the attack of typhoid fever as a complication, or had it developed during convalescence from that fever, the relation might be accepted or assumed, but coming on, or developing two or two and one-half years after the attack of fever, as shown by the evidence, and nearly as long after discharge from the service, origin in service of the appendicitis, as a result of typhoid fever, or as otherwise incident to soldier's service, is not established by the evidence on file.

This soldier is now a pensioner under the act of May 1, 1926 (44 Stat. 382), at $25 per month, for partial inability to earn support by