JACK CARROLL CARD

Decided November 3, 1930

Pension was denied in this case on the ground claimant was unable to prove that his injury was incurred in line of duty for pension purposes. The record indicates that he fell, injuring his hand while going through the boiler room of his barracks at night, when returning from pass. The court was convened to investigate the accident and found there were no eyewitnesses to the accident, but likewise found no evidence of the veteran's having been drinking or otherwise guilty of misconduct.

Held: There are no contrary facts presented or any features leading to a reasonable doubt but that claimant's injury was incurred in line of duty.

HINES, Administrator of Veterans' Affairs:

Jack Carroll Card, under date of July 28, 1930, appealed from rejection of claim for pension under the general law, sections 4692–4693, Revised Statutes, on account of injury of right hand, on the ground that the evidence failed to show, and claimant was unable to prove, that the injury was incurred in line of duty for pension purposes. The military records of The Adjutant General, War Department, show that Card

was enlisted January 8, 1926, assigned to Troop A, 2nd M. D. Squad, transferred to M. G. Troop, 7th Cavalry, and honorably discharged at Fort Bliss, Texas, September 29, 1928, on Surgeon's Certificate of Disability because of ankylosis, 4th right metacarpophalangeal joint, and limitation of motion other joints, right hand. Disability was incurred in line of duty. Extent of disability 25%. Report of a board of officers convened to investigate the circumstances attending the incurrence of the injury to 4th finger, right hand, is on file in this office. Military records show that injury was incurred in line of duty.

The medical records, relative to the injury, show the following:

At William Beaumont General Hospital from Jan. 23, 1928 to June 21, 1928. Cellulitis, acute, suppurative, all surfaces, entire right hand, due to wound, lacerated, base of 1st phalanx, 4th finger, right; accidentally incurred when patient fell on a shovel while firing hot water heater at Ft. Bliss, Texas, Jan. 21, 1928.

In line of duty.

At Post Surgeon's Office, Fort Bliss, Texas, Sept. 29, 1928. (Carded for record only: Not currently on the register).

Ankylosis, 4th right metacarpophalangeal joint and limitation of motion other joints right hand, following cellulitis, suppurative right hand resulting from injury to hand, wound lacerated. Severe. Accidentally incurred when patient fell on shovel while firing hot water heater at Fort Bliss, Texas, Jan. 21, 1928. (Old William Beaumont General Hospital, Jan. 23, 1928). In line of duty.

The files of the enlisted division, Adjutant General's Office, War Department, contain the following report of a board of officers in the case:

A Board of Officers was appointed March 23, 1928, by S. O. 42, Hq. 7 Cavalry, Ft. Bliss, Texas, for determining the "line of duty status of such cases as may be brought before it." The Board met at 12 noon in the case of Jack C. Card. (Testimony is given in the third person. SLB.)

Captain James R. Finley, 7th Cavalry, stated that on the morning after the injury occurred Private Card reported in the orderly room and asked to be placed on sick report, that Private Card went on sick report, and that he was sent to the hospital. Captain Finley stated that Private Card was marked sick in line of duty and that he had been carried sick in line of duty since then. Captain Finley stated that Private Card was on a duty status when the injury occurred, that the injury was caused by falling in the boiler room of Machine Gun Troop, 7 Cavalry, and striking his hand on a shovel. Captain Finley stated that this was according to Private Card's own statement. That Private Card came from town and entered the quarters through the boiler room. When questioned by the Board what Private Card had been doing in the boiler room, the Captain stated that Private Card had to pass through the boiler room to get to his squad room. Captain Finley stated that Private Card had authority to be absent from the post.

1st Sergeant Frank A. Leshiere, M. G. Tr. 7 Cavalry. The 1st Sergeant stated that Private Card came in the orderly room on the morning after the accident occurred and asked to be placed on the sick report. The 1st Sergeant stated that he had asked Private Card how he had hurt his hand, to which Private Card replied that he came home late and that he fell in the boiler room, when going through the same, and that he had hurt his hand when striking a shovel in the fall. The 1st Sergeant stated that he placed Private Card on sick report, and that he was sent to the hospital by the surgeon. When questioned by the board what Pvt. Card had been doing in the boiler room, the 1st Sergeant stated that the lights were out in the quarters and that Private Card had to go through the boiler room to get to his squad room. When questioned by the board if he, the 1st Sergeant, knew if Private Card had been drunk, the 1st Sergeant answered in the negative.

Captain Lewis E. J. Browne, 8 Cavalry (M. C.). Captain Browne stated that he remembered the case of Private Card. That he diagnosed the injury as follows: "Wound, lacerated, base of 1st phalanx, 4th finger, right hand; incurred Jan. 21, 1928." Captain Browne stated that he had sent Private Card to the hospital, and that the injury was in line of duty. Captain Browne further stated that Private Card had not shown evidence of drinking.

Findings

After careful consideration of the evidence presented the board finds that Private Jack C. Card, 6766946, of M. G. Troop, 7 Cavalry, was injured when returning to his quarters, entering the quarters of the Machine Gun Troop, 7 Cavalry, through the boiler room, when he stumbled, causing him to fall, striking his hand on a shovel and thereby injuring his finger, on or about the night of Jan. 21, 1928.

The Board further finds that Private Jack C. Card was injured in line of duty and not as a result of his own misconduct.

Sworn statement of Private Card attached hereto marked Exhibit "A". (Signed by all members): Howard R. Smalley, Lt. Col., 7 Cav., Charles E. MacDonald, Major M. C., and Theo. E. Voight, Capt., 7 Cav. Approved by William M. Connell, Colonel, 7 Cav., Commanding.

Exhibit A

Before me the undersigned, authorized by law to administer oaths in cases of this character, appeared one Private Jack C. Card, 6766946, M. G. Tr., 7 Cavalry, who after being duly sworn, according to law deposes and says:

I came home from pass and in order to get to my squad room I had to go through the boiler room. The boiler room was dark and I fell over a bucket of coal and hit a shovel cutting the back of my hand. The next morning about 6 o'clock I reported to the dispensary for treatment. I was sober at the time of the accident. There were no witnesses to the accident. (Signed) Jack C. Card

Sworn to before me and subscribed in my presence this 25th day of June, 1928. (Signed) Howard R. Smalley, Lt. Col., 7 Cav., President Bd.

Following the above action of the Board of Officers the 1st Cavalry Division Headquarters questioned the duty status, as the affidavit of Card stated he was returning from pass. Captain J. R. Finley replied to this July 24, 1928: 1. Private Card did not have either an individual written or verbal pass to go to town for the reason that as there were no duties or formations for him during the term of his absence, no pass was necessary. He is regarded as being on a duty status because at the time of his injury he was actually in the barracks of his organization and was carried on the troop morning report at that time as "for duty."

There were no eyewitnesses to claimant's accident and the conclusions must be reached from the claimant's own statements as accepted and recorded in the War Department. No additional evidence is available. There are no contrary facts presented, nor are there features that lead to reasonable doubt that claimant's injury was not service connected and in line of duty, and in the present case it is so held.

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

HENRY B. DANNEMANN

Decided November 4, 1930

The claimant for increased rating under the general law contends that foot disability is of greater severity than is represented by an award of $8 per month.

Held: The evidence was reviewed and showed that while the foot disability may be more serious than indicated by the rating, it is in large part due to flaccid conditions noted at time of entrance into the service and $8 per month is the proper rating for the results of an operation on the right great toe during service.

HINES, Administrator of Veterans' Affairs:

The above-named soldier while a pensioner under the general law, sections 4692 and 4693, Revised Statutes, at $8 per month, for disability designated as effects of operation in service on right great toe,

filed September 2, 1930, for increase of pension, wherein he alleged that on account of increased disability of the whole right foot he believes himself to be entitled to an increase of pension.

Said claim was rejected by the commissioner October 6, 1930, on the ground that the evidence on file fails to show any material increase in the degree of disability for which claimant is pensioned— effects of operation on right great toe. The present condition of right foot is due mostly to other causes.

Claimant entered an appeal October 18, 1930, wherein he states:

In view of the fact that my disability is due to the amputation of my right great toe, and that this is what causes me all the trouble, I do not see why the other causes are not particularized in the letter which I have just received.

When claimant was last officially medically examined, April 24, 1930, under a prior claim for increase, his age was reported as 52 years; height, 6911⁄2 inches; weight, 176 pounds; occupation, baker. His general appearance was described as "old" and there was a limp in walking. Heart, lungs, and kidneys were free from signs of disease. The condition of right foot was reported as follows:

Was operated in 1910 for bunion of great toe of right foot. The terminal phalanx is gone and the tendon to the toe has been destroyed so that he can not move toe. The foot is also flat-practical loss of function.

The left foot was also shown to be flat, complete in degree, same as right foot. The medical affidavit filed September 2, 1930, in support of the claim for increase, based upon an examination of claimant, showed the existence of arthritis of joint of great toe, next to the distal joint, at which joint the toe had been removed. The transverse arch was also "flat," sole of foot being like the "proverbial pancake." The left foot was reported as in the same condition. This affiant further stated:

But when he walks on right foot, loss of toe plus flat foot twists his ankle joint inward so that he is continually in pain. This is a direct result of loss of toe.

It hardly seems necessary to state that the right foot did not become flat as a result of the operation on right great toe, since both feet are flat to the same degree and a condition of flat foot, involving both feet, was present at the date of claimant's enlistment. Nor does it appear from the evidence now on file that the effects of the operation on the great toe of right foot are markedly progressive in character, or that said effects have materially changed for the worse since claimant was last officially medically examined in April, 1930.

The disability from flat right foot, or effects of same, was properly excluded in the recent action of rejection, and since the disability

from the effects of the operation on right great toe was not shown to have materially changed for worse, or to be disabling to an extent warranting a rate in excess of $8 per month, under the general law, no other action than a rejection of the claim for increase on the grounds stated was warranted, and same is affirmed.

JOHANNA O'SHEA, WIFE OF DANIEL J. O'SHEA

Decided November 7, 1930

Appellant alleges she is entitled to one-half of pension under the act of March 3, 1899, as the wife of the veteran. Evidence discloses that appellant was married to one B in 1899 and lived with him for six or seven years in New York State. Subsequently she moved to Massachusetts after separation from her husband and he died in March, 1925. She attempted marriage with pensioner in March, 1921, and testified that she then believed the said B to be deceased, such belief being based on information given her by one Mc who stated she had read notice of B's death in a newspaper. Six months after attempted marriage to pensioner she learned that B was still living, whereupon it is shown that she and the pensioner separated. Under the law of Massachusetts, if a person during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, they shall, after the impediment to their marriage has been removed by the death of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married.

Held: In this case good faith is not established and they did not live together after it was discovered that B was still living. Further, it is not believed that the appellant has sufficient basis for believing B to have been dead at the time she attempted marriage with the pensioner.

HINES, Administrator of Veterans' Affairs:

Daniel J. O'Shea, a Spanish war veteran, has been in receipt of pension since October 27, 1926.

Johanna O'Shea filed, December 10, 1929, a declaration for a claim under the act of March 3, 1899 (30 Stat. 1379), for one-half of the pension of the soldier, in which she alleged her marriage to him March 19, 1921; that he was then an inmate of a national soldiers' home, and that she is a woman of good moral character and in necessitous circumstances.

Claimant filed evidence in support of her claim; the soldier filed evidence in rebuttal; and the claim was subjected to special examination during which the depositions of the claimant, the pensioner, and of other persons were taken by a representative of the Pension Bureau.