The National tribune., 1900-04-26
SOINDNESS-

| EVIDENCE-PRIOR SOUNDNESS-
ORIG1&.-1n the pension case of Charles
Hebel the claimant was pensioned for
one disability as Captain, until 1898, when
his pension WIS reduced wholly TO enlisted
! mans grade on the ground that a record of
the War Department showed that he had
been treated in hospital for his pensioned
disability in question, chronic dlarrhea,
during prior service in another organiZa-
ton, and that this pensioned disability
must be regarded as having had its origin
| in such prior service and not in the service
in which the claimant served as Captain.
| The decision says (First Assistant Secre-
| tary Ryan, March 20, 1900:
| There is not a particle of evidence on
| file tending TO show that the appellant ever
| had diarrhca at any time during his first
| service than the one occasion mentioned in
the record. and there is no evidence that he
| ever had chronic diarrlea at any time prior
| to some time in May or June, 1865, when
he was serving as Captain of Co. K, 1Soth
| Ohio. A period Of about three years
| elapsed between the date upon which the
| record shows he was treated once for diar-
rhea III his first service and the date when
he is shown by testimony. which has been
accepted as sufficient proof by the Pension
Bureau. 10 have contracted chronic diar
rhea i'll his second service. during which
period there is not one word of testimony
or evidence OF any kind or nature whatever
showing or even tending remotely to show
the existence of diarrhea at any time, or in
any degree, or of any character.
The official record of the appellants
military service i'll Co. G. 9Th Ohio, shows
clearly on its face that the 'diarrhea' for
which he was treated OH April 80, 1852,
was but an ordinary acute attack OF diar-
rhea, not serious in character. of short
duration, and not permanent in its effects.
"In the first place, said record does not
state, as was enormously stated in the
notice of March 80, 1898, TO the appellan;
of the proposed action reducing his rate Of
pension, that he had received hospital
treatment for chronic -diarrhea while serv-
ing in Co. G., 9Th Ohio, nor could any such
meaning be fairly deduced from said record;
but it simply shows that he received treat
ment on one occasion, April 80, 1862, for
'diarrhca.' 1t does not state nor indicate
in any manner that the appellant was sent
to or treated in any hospital, regimental or
general, on this occasion, but simply that
he received medical treatment on that day,
and on that day alone, for an attack of
ordinary diarrhea, not chronic diarrhea,
presumably, in the absence of anything
to the contrary appearing, i'll the regiment
and in his quarters. The only just and fair
inference that can be drawn from said
record is that this appellant appeared at
sick call on said date and was prescribed
for by the Rcgimental Surgeon for an acute
attack of diarrhea, and this is all there is in
1t. Furthermore, the record shows that
said attack of diarrhea could not have been
either of long duration, or serious, or dis
abling in character or permanent in it's
effects, for the rolls show that he WIS pres
ent for duty from the date of his enlistment
in 1861 To Nov. ~, 1862. when he was left
sick at Nashville, Tenn. with disease of
lungs, and was never afterwards treated
during said service for diarrhca, or any
other form Of bowel trouble. consequently
said attack Of diarrhea on April 30, 1862.
could not have been of sufficient Importance
or gravity to have excused appellant from
duty, even on that day. or at any time
afterwards during said service. The ap-
pellant was discharged from his term Of
service III Co. Il, 9th Ohio, on Feb. IA, 1863.
upon n Surgeons certificate of disability.
wherein it is recited by the Captain of said
company tnat ne had served as Rcgimental
and Brigade Buglcr from July, 1861, TO
Oct. %, 1862, since which date the Assistant
Surgeon in charge of the regiment at the
time certifies therein that he hal carefully
examined the appellant and found him
incapable of performing the duties of Il sol
dicr because of extensive aihesionS Of
lungs and organized deposits within
thoracic cavity. There is also evidence of /
tuberculouS deposits within lungs
There is not one word in this certificate |
indicating that this appellant then was or
ever had been previously disabled by |
chronic diarrhea, and the presumption of |
law Is that said certificate contained a de- |
scription of all disabling causes present at |
the time of his discharge. This prcsurnp- |
ton has been frequently announced in the |
decisions of this Department. and has been |
uniformly applied and acted upon by the ]
Pension Bureau in the adjudication Of pen
sion claims where it operated adversely to |
the claimant. end there is certainly no rea-
son why it should not apply with equal |
force in this inS tance where it would operate
to the advanta gc Of this appellant.
1T has been frequently held by this De
partment that second enlistment raises
the presumption that if any disability had
been contracted in the first service, the
claimant had recovered therefrom and was
and this presumption will stand until
clearly disprovcd. Citing dcciSiOns)
"Ihe ruling announced i'll the above
cited decisions has been uniformly applied
by this Department and the Pension Bureau
in the adjudication of pension claims.
where the same are based upon a disability
alleged to have originated during n first
term OF military service, and claima Is
have been required to overcome and rcDut
the presumption Of recovery and soundnes3
at the date of the second enlistment by !
positive, direct, and circum stantial proof
Of the existence and continuance Of the
alleged disability during srlch interval as
may have Intervcnel between the two
terms OF service, at the daic Of the second
enlistment and during the pcriOi of the
second service, IN order 10 establish t!Icir
claims.
in this case more than two AMI one-haf
years lntervened between the discharge of
the appellant from his first service aaI the
late OF MS second enlistment, during which
lme there IS not sc:ntiia of evidence
tending to show the existence Of diarrEea
IN any form, or that il existed at the date Of
his enrolment i'll his second service, or
turing said service prior 10 the date at
which the evidence shows he contracted the
chronic diarrhea for which pension was
originally allowed him. Not only 50, but
the medical evidence filed in support of the
APPELLANTS original claim distinctly states
that he was free from chronic diarrhca
prior TO his second service. Consequently.
no good reason can possibly bc assigned
why the aforementioned presumption OF
-ecovcry and souudncsS ri the date OF ap-