Sunday Washington globe., 1902-02-16
[continnea From Lnst Issne !

congressman In trying to conceal the abso-
lutte bar which Evans has set up against
old-law pensions. Congressman aud Secre-
tary Hitchcock of the Interior Department
are trying to belittle the complaints of the
old veterans by extolling Evans aud pre-
tending that his rule of estoppel against
oid-law claimants is mere question of
weight Of evidence, requiring strong proof
Hitchcock and these M. C's. know full well
4. that It is an illegal rule Of estoppel or bar,
not a rule of evidence and that it is on
principle the same as (but stronger) than
the estoppel which Congress enacted in
Sec 47I7 of the Pension Code, but which
Congress repealed over twenty years ago.
(See GLOBE Feb. 9, 1902, Dec IS, 1901
This limitation can be made lawful by an
act of Congress only. (GLoBE Jan. S, 1902,
Feb. g 1904.
Long after Harrisons administration re-
moved this illegal bar, the clerks in the
board Of appeals, while sustaining the
Bureaus rejection of two cases, discussed
this estoppel as a rule of evidence still ex-
isting in what is called new disability"
cases disabilities alleged under the old law
for increase after a pension certificate for
other diseases had been issued and soldier
placed on the pension rolls). As Congress
had repealed the law of Limitation or estop-
pel) Sec. 47I7, where it is called a statutory
limitation), Commissioner Raum, as well as
the attorney, Fitzgerald, considered the
language used an inadvertence, although
Raum held that rejection was proper on
weight of evidence. Raum, treating the
language used as a rule of evidence, OBJ
ieeted to the rule on logical grounds apart
from the illegality of the bar. Raum wrote
Nh.. A--t = r
BUREAU OF PENSIONS, AHg. p, IS02
SIR: I have the honor to invite your at.
tention to the decision rendered in the case
of Alexander Gillespie, and reaffirmed by
decision No. S4 in the case of James B. Ed
dings. do not call attention to these cases
for the purpose of having either Of them
reviewed The decisions upon the facts
seem to be sound, but what I wish to invite
attention to is that part of the Eddings
case adopting the syllabus in the Gillespie
case as a fixed rule for the office in regard
to proving origin in aeaO disability claims.
The adoption of the principle laid down in
the syllabus that lay testimony when unsup.
ported by the record OF by medical evi-
dence (at discharge), and which (lay testi-
mony) is dated years after claimants dis.
charge, cannot be accepted as proof of in
currence Of alleged disability in the service,
is contrary to the well-known rule of con-
struction which requires that all remedial
(benefcial) legislation shall be construed
literally, and a serious criticism upon this
principle is, that it applies a rule of evil
dence TO HesO disability claims, which is
not applicable to original claims. In the
latter class of claims lay testimony is con
stantly accepted as proof of the incurrence
of disability in the service unsupported
by the record or by medical evidence. The
evidence, of course, must be of such a
character as to satisfy a reasonable mind
that the disability for which a claimant asks
pension had its origin in service, and | am
at a loss to understand why different rule
shall be established for the construction of
what are known as new disability claims "
(See P. II Fitzgerald, P. D.. PIP. 60 and
81
In answer to the above letter the Board
of Appeals on September wrote an explain
alton that failed TO explain and appeared
to adhere TO its former language but in re-
sponse TO an explicit inquiry from Commis-
sioner Raum of October 8, referring to the
repeal of the Limitation by Congress and to
the ruling of the Board of Appeals in the
new disability claim Of Wright of Septem-
Der a, 1889, the leading case under the
Harrison administration Wright P D.
1917 Assistant Secretary Bussey modified
the language in the Eddings and Gillespie
decisions to conform to the rule in the
Wright decision, and stated that the other
cases had been misunderstood. Assistant
Secretary Bussey in this letter or supple
mentary decision, October 4, quoting from
the Wright decision of September "a IN ns7O
disability claims said; This presumption
(from absence of army record or army
surgeon) may be overcome and Outweighed
by testimony of officers, comrades and
neighbogs, though unsupported by either
record or medical evidence Of existence
either in the service or Immediately after
discharge" (6 P. d. text, page S4) This
ruling in the Wright decision stood all
through the Harrison administration and
through the succeeding administration of
Cleveland eight years), and hasu been
overruled in nezO disability claims by the
Department of the Interior. The decisions
of the Interior Department have practically
followed the same rule in Ne10 disability
cases during both Cleveland's second ad-
ministration (Strange p d. 60, Kiley
p d. 440) and in the Mckinley administra-
tion (Bruner 10 P. ID. 40; Lee 9 P. ID. 2I4;
Warren 9 P. d. 3o2; Watkins 10 P. d. 2oa;
Ruddick 10 p. D. 2T7). But claimants do
not know what course to take when Evans
rejects their claims by his unlawful estop-
pei, which the Secretary Of the Interior
permits him to privately continue in viola
tiOn Of the decisions of the Board of Ap-
peals in the Interior Department
We have dwelt on these facts to add this
to the proof Of a conspiracy to unlawfully
conduct the bureau under Evans in viola
ton Of the published decisions of the Ia
terror Department. This conspiracy crops
out in every class Of claims which Evans
has unlawtully attacked by rejection by
large classes or by holding them upon the
hold-up flies IN his Office. Take the numer-
Gus classes under the new law where Evans
deprived the claimants Of their legal rights
Evans was permitted to exhaust bis scheme
each time, before the Board of Appeals In
the Interior Department was permitted to
reverse him The Board Of Appeals was