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Chapter XXII

Communicable Diseases, Table of Contents

CHAPTER XXII

DECISIONS AS TO WHETHER OR NOT DISABILITIES WERE IN LINE OF DUTY

A duty devolving on the Medical Department for many years has been the expression of a professional opinion by the medical officer concerned whether a disability arising in the course of a soldier's service and necessitating his discharge was in consequence of such service, or, in military parlance, was "in line of duty." This was deemed necessary from the military standpoint in view of the fact that from our earliest history as a nation our Government has considered itself obligated to compensate soldiers suffering physical or mental harm while performing military duty on its behalf.

LAWS, REGULATIONS, AND DECISIONS GOVERNING THE LINE OF DUTY DECISION

The first enactment in this country with reference to military pensions was a resolution passed by Congress on August 26, 1776, in which it was provided that all soldiers in the Revolutionary War who had lost a limb, or otherwise had become disabled, should be granted a pension. Since that time various statutes of the United States have provided for the payment of pensions to any person disabled as a result of military service. As the disability must have been incurred "in line of duty," the War Department has always required an expression of opinion on this point from the medical officer who submits any report in the case of a sick or wounded soldier. Likewise this is so specified on the certificate of disability for discharge.

Prior to the act of Congress approved October 6, 1917 (which amended the act of September 2, 1914, authorizing the establishment of the Bureau of War Risk Insurance), the monetary relief allotted to a disabled soldier after discharge from the Army, or to the relative of a deceased soldier, was known as a "pension." Since the date of the above-mentioned enactment the term "compensation" has been used. Prior to this act the consideration of all questions relative to the adjudication and payment of pensions had for many years been under the jurisdiction of the Bureau of Pensions. While this bureau did not consider final the opinion of the War Department as to whether a death or disability was incurred in line of duty or not in line of duty, nevertheless it is safe to say that the adjustments made by the Pension Bureau were in the vast majority of cases based upon the records of the War Department. For this reason an expression of opinion regarding the line of duty status in each instance was regarded by every medical officer of the Army as of great consequence, since he must assure himself that no injustice be done to any individual, while at the same time safeguarding the interests of the Government. If there were any uncertainty in a given case, the soldier received the benefit of the doubt; rarely could exception be taken to the decision reached. Certain pensions for alleged disability were granted, however, by special acts. For some such bills neither the opinion of the War Department nor that of the Pension


588

Bureau exercised any influence. Yet, under the old pension system, the adjudication of claims generally was largely based on professional opinion-in the first instance, that of medical officers.

Since the passage of the amendment of October 6, 1917, to the war risk insurance act, all soldiers discharged subsequent to the above date of approval, and certain soldiers discharged since April 6 of that year, were entitled to compensation but not to pension. The disbursement of compensation is under control of the Bureau of War Risk Insurance, a branch of the Treasury Department; the Pension Bureau is not concerned.a

The directions which for many years before the World War guided medical officers in determining whether or not a disease or injury was incurred in line of duty were published in the Manual for the Medical Department. In the 1916 edition of this Manual, the edition in effect during the World War, paragraph 448-a reads as follows:

All diseases or injuries from which an officer or enlisted man suffers while in the military service of the United States may be assumed to have occurred in the line of duty; unless the surgeon knows: First, that the disease or injury existed before entering the service; second, that it was contracted while absent from duty without permission; or, third, that it occurred in consequence of willful neglect or immoral conduct of the man himself. When the patient is admitted for an operation or procedure which is designed to improve his physical fitness or efficiency for the military service, such operation or procedure will be recorded as in line of duty, without reference to the fact whether the condition to be remedied originated in the line of duty or not, provided that the primary cause is not the result of the patient's own misconduct.

The provisions quoted were in effect until May 11, 1918, when General Orders, No. 47, War Department, 1918, were issued; Section II thereof reads as follows:

Hereafter any soldier who shall have been accepted on his first physical examination after arrival at a military station as fit for service shall be considered to have contracted any subsequent determined physical disability in the line of duty unless such disability can be shown to be the result of his own carelessness, misconduct, or vicious habits, or unless the history of the case shows unmistakably that the disability existed prior to entrance into the service. The same ruling shall apply in the cases of officers who have been passed as fit for service on physical examination upon entrance into the service.

On June 15, 1918, the Manual for the Medical Department was amended by Changes No. 8 to conform with the provisions of General Orders, No. 47, paragraph 448-a, then reading as follows:

An officer, Army field clerk, or field clerk, Quartermaster Corps, who has been passed as fit for service on physical examination upon entrance into the service or a soldier or member of the Nurse Corps who has been accepted on his or her first physical examination after arrival at a military station as fit for service shall be considered to have contracted in the line of duty any subsequently determined physical disability, unless such disability can be shown to be the result of the patient's own carelessness, misconduct, or vicious habits, or to have been contracted while absent from duty without permission, or unless the history of the case shows unmistakably that the disability existed prior to entrance into the service. When the admission is for an operation or procedure which is designed to improve the patient's physical fitness or efficiency for the military service, such operation or procedure will be recorded as in the line of duty, without reference to the fact whether the condition to be remedied originated in the line of duty or not, provided that the primary cause is not the result of the patient's own misconduct.

aThe functions of the Bureau of War Risk Insurance were invested in the United States, Veterans' Bureau, August 9, 1921.-Ed.


589

In arriving at a conclusion as to whether a disease or injury was incurred in line of duty, there was seldom any cause for hesitancy in the earlier days in rendering the decision except in cases where it was a question whether the disability had existed before entrance into the military service. Until May, 1918, the existing regulations placed the responsibility for this decision directly on the medical officer concerned, who must satisfy himself whether or not the physical defect existed prior to such service. In determining this question he necessarily relied on his judgment in each case, basing his opinion not only upon the history obtainable but also upon the extent and character of any lesions which existed, interpreted in the light of his professional knowledge. Especial attention was given to the degree of involvement of any part of the body which was affected as related to the length of service of the individual soldier concerned. If the medical officer was thoroughly satisfied (after having obtained any necessary consultation which was available) that the disability must have existed prior to the onset of the patient's military career, the condition was regarded as not incurred in line of duty and such a notation was made on the official records of the individual under examination.

The line of reasoning was as follows: At the time applicants for enlistment are examined for entrance into the military service, it is sometimes impossible for the medical examiner to detect certain types of defects. Individuals having enuresis, epilepsy, incipient dementia pręcox, paresis, and psychoneurosis, or defective mentality, will sometimes inevitably be accepted by the most competent and conscientious examiner. Certain cases of inactive tuberculosis also will be passed. Numerous other puzzling conditions might be mentioned, and the number of cases escaping detection at once will always be greater under a press of work and with inexperienced examiners. Soldiers with such undetected serious defects will necessarily soon come up for discharge because of physical disability; and if a medical officer can then determine the true facts, strict justice can be done and at the same time the Government will be saved a very large sum which otherwise would be paid out in pensions for disabling conditions in no way dependent upon military service.

With the modifications governing the determination of "line of duty," which were promulgated by General Orders, No. 47, as quoted above, it was realized that a strict interpretation of the word "history" would greatly restrict the investigation which the medical officer was required to make in determining the line of duty status. The question at once arose whether the term "history" meant solely a statement obtained from the patient, or from others, relative to his physical condition prior to enlistment, or, whether the results of physical examinations, laboratory findings, X-ray plates, etc., could be included in this term. The matter was submitted to the Judge Advocate General for an opinion (see case of W. W., p. 593), but this particular phase of the question was ignored. It was the opinion of the Surgeon General, however, that the word "history" in medical nomenclature refers exclusively to the statement of the patient, or to statements of others having direct knowledge as to the patient's previous condition, and that only facts so elicited should be considered in this connection. Therefore, it was also his opinion that a medical officer would be justified in classing such a case as not in line of duty solely when a definite and unmis-


590

takable statement that the disability actually existed prior to entering the service was obtainable. It was regarded as fairly certain that in most cases when there was such a history a thorough questioning of the soldier would bring out the facts.

Having considered the provisions of the Manual for the Medical Department and the general orders of the War Department, under which medical officers were required to act in the determination of line of duty status, we now come to consideration of the war risk insurance act.

It will be observed that all of the preceding regulations provided that, from the military point of view, a disability clearly established by the history to have existed prior to enlistment was not in line of duty. From the compensation standpoint a new factor was introduced by the war risk insurance act. Section 300 of this act, as amended, is as follows:

That for death or disability resulting from personal injury suffered or disease contracted in the line of duty, by any commissioned officer or enlisted man or by any member of the Army Nurse Corps (female) or of the Navy Nurse Corps (female) when employed in the active service under the War Department or Navy Department, the United States shall pay compensation as hereinafter provided; but no compensation shall be paid if the injury or disease has been caused by his own willful misconduct: Provided, that for the purposes of this section said officer, enlisted man, or other member shall be held and taken to have been in sound condition when examined, accepted and enrolled for service: Provided further, that this section, as amended, shall be deemed to become effective as of October sixth, nineteen hundred and seventeen.

An amendment to this section, approved December 24, 1919, provided that the benefits of the act should become effective April 6, 1917, in place of October 6.

The feature of section 300 which demands special consideration at this point is the provision that every officer, enlisted man, or nurse "shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service." There could be but one interpretation of this act. Every such person who had been accepted for service was at that time legally in "sound condition"; consequently, any disability discovered thereafter while such person remained in the service (unless incurred through the individual's willful misconduct or when absent without leave) was, for purposes of compensation, in line of duty, even though the history clearly showed that it existed before entering into the military contract. This was a revolutionary change involving greatly increased obligations on the part of the Government and in consequence increasing its expenditures for compensation by millions of dollars annually.

General Orders, No. 47, War Department, 1918, and paragraph 448-a, Manual for the Medical Department, were in nowise modified to meet the provisions of the war risk insurance act in this respect. The existence of the law, as applying to such cases, was unknown to many officers, and they continued to follow the requirements of the Medical Department Manual and the general orders. Some officers who were cognizant of the law believed that it had no bearing on the War Department and that in preparing reports regarding sickness and discharge they must be guided by the instructions issued in the official War Department publications. It was therefore to be expected, as


591

was the case, that in a short time numerous complaints and requests for changes in individual reports regarding line of duty status would begin to arise. The Judge Advocate General of the Army consistently held that, for purposes of compensation, any disability which existed prior to entry into the service must be regarded by the military authorities as incurred in line of duty, since the law declared the soldier sound at the time of acceptance. It was furthermore held by the Judge Advocate General that no attempt should be made by medical officers concerned to ascertain the history of the soldier prior to his entrance into the Army. Several of these opinions of the Judge Advocate General, which were approved by the Secretary of War, are here quoted:

[Sixth indorsement1]

WAR DEPARTMENT,
JUDGE ADVOCATE GENERAL'S OFFICE,
    April 1, 1919.

To THE ADJUTANT GENERAL:

1. Reference A. G. 201 (K., E. M.) Enl., March 28, 1919. The opinion of this office is requested whether or not the disability resulting in the discharge of, K. E. M., private, Battalion 15, Camp Greenleaf, Medical Department, United States Army should be regarded as in line of duty and not the result of his own misconduct. Lieut. Clarence R. Miller, assistant camp neuropsychiatrist, made an examination of Private K. on August 20, 1918, and recommended his discharge for disability, dementia pręcox, paranoid type, and stated that the disability occurred prior to the enlistment. Private K. was discharged on November 16, 1918, his discharge under the heading of "Remarks," containing the conclusions of Lieutenant Miller.

2. It appears from the papers in reference that Private K. had frequent attacks of the blues, noticed people acting peculiarly toward him since he was a boy; never had been much of a mixer; never associated with women; complained that the men in his company had it in for him, and that they made unfounded accusations against him with officers; that he thought they were going to have him court-martialed. He became despondent and homesick. He admitted having contemplated suicide several times, but attempted it only once. He had delusions of persecution, showed some thought blocking, and had some insight into his condition.

3. It is the opinion of this office that, under paragraph 2 of General Orders, No. 47, May 11, 1918, the disease should be regarded as having been incurred in line of duty. (Ops. J. A. G. 220.4, July 31, 1918.) With respect to compensation under Article III, section 300, of the war risk insurance act (40 Stat. 398, 405), as amended (Pub., No. 175, 65th Cong. p. 3), a soldier must be regarded as in sound condition when accepted for service. (Ops. J. A. G. 220.4, Oct. 22, 1918.)

(Signed) E. A. KREGER,
Acting Judge Advocate General.


[Eleventh indorsement2]

WAR DEPARTMENT,
JUDGE ADVOCATE GENERAL'S OFFICE,
March 6, 1919.

To THE ADJUTANT GENERAL:

1. Reference A. G. 201 (H., B.) enl., March 4, 1919. The opinion of this office is requested upon the question whether or not the death of Pvt. B. H., Company G, 3d Infantry, should be regarded as having been incurred in line of duty and not as the result of his own willful misconduct. The board of officers appointed to investigate the death found that it was the result of suicide, that at the time of the suicide the accused was not responsible for his acts, and that the death was in line of duty and not the result of the decedent's own willful misconduct. The proceedings were sent back for consideration of the question whether


592

the mental condition of the accused was incident to or a result of his military service or whether it existed prior to enlistment. The board then found that the mental condition existed prior to enlistment, and amended the third paragraph of its original findings so as to find that the death was not in line of duty.

2. The death of Pvt. B. H. should be regarded as having been incurred in line of duty and not as the result of his own misconduct. The evidence is ample to support the findings of the board to the effect that the death was the result of suicide and that at the time of the suicide the decedent was not mentally responsible for his act. The fact that the mental condition may have existed prior to enlistment is entirely immaterial. Section 300 of the war risk insurance act, as amended by the act of June 25, 1918 (40 Stat. 611), specifically provides that an enlisted man shall be held and taken to have been in sound condition when examined, accepted, and enrollod for service.

                                    (Signed)         E. H. CROWDER,
Judge Advocate General.

WAR RISK INSURANCE; LINE OF DUTY; PRESUMPTION OF SOUND PHYSICAL CONDITION AT TIME OF ENLISTMENT

A soldier five months after enlistment was discharged on a surgeon's certificate of disability. The board of medical officers based its findings that the disease, dementia pręcox, was incurred prior to enlistment and not in line of duty, upon the statement of the soldier that about four years previously he had had serious domestic trouble and at that time had been in a sanitarium and was restless and worried. Held, that, under paragraph 2 of General Order No. 47, May 11, 1918, the disease should be regarded as having been incurred in line of duty. (Ops. J. A. G. 220.4, July 31, 1918.) With respect to compensation under Article III, section 300, of the war risk insurance act, as amended (40 Stat, 398, 405), a soldier must be regarded as in sound condition when accepted for service (Pub. No. 175, 65th Cong., P. 3). (Ops. J. A. G. 220.4, October 22, 1918.)


[Fourth indorsement3]

WAR DEPARTMENT, JUDGE ADVOCATE GENERAL'S OFFICE, March 18, 1919

TO THE ADJUTANT GENERAL:

1. Reference A. G. 201 (M., A. L.) enl., March 15, 1919. Opinion is requested upon the question whether the death of Pvt. A. L. M. should be regarded as having occurred in line of duty and not as the result of his own willful misconduct. It appears that M. was inducted into the service by local board No. 3, County of York, York, Pa., on August 31, 1918, and reported on that date to the training detachment, Spring Garden Institute; that at 6.45 p. m. of the same day he had an epileptic fit and was removed to Jefferson Hospital, Philadelphia, Pa., at which place he died on September 4, 1918, from epilepsy. He was never examined physically after reporting to the training detachment.

2. This office has consistently held that a man enters the active military service within the meaning of Article III of the war risk insurance act when he is inducted into the service, that he should be regarded as in sound condition at the time of such induction, and that any supervening disability occurring while he was in a duty status should ordinarily be regarded as having occurred in line of duty. The War Risk Insurance Bureau has, however, ruled that a soldier does not come within the protection of the war risk insurance act until after he has been finally examined and accepted by the Army surgeons at the mobilization point to which he is sent by the local draft board. Under section 13 of the war risk insurance act the decision of the Director of the Bureau is conclusive upon this point. Consequently, within the rulings of the Bureau of War Risk Insurance, the death of Private M. must be regarded as having occurred not in line of duty, although it can not be regarded as having occurred as the result of his own willful misconduct.

                            (Signed)             E. A. KREGER,
                                    Acting Judge Advocate General.


593

WAR RISK INSURANCE; EFFECT OF DISABILITY ARISING SUBSEQUENT TO ACCEPTANCE FOR GENERAL MILITARY SERVICE; LATENT DEFECTS

A soldier was inducted into the service and accepted by the board of Army surgeons at a camp as physically qualified for general military service. Subsequently he became disabled. If disability resulted from an aggravation of a disease which the soldier had prior to his acceptance for service and such aggravation was cause by his military service and not by his willful misconduct, he is entitled to compensation under section 300 of the war risk insurance act. (40 Stat. 398, 405.) If he is entitled to such compensation, he is also entitled to reasonable medical, surgical, and hospital services, as provided by subsection 3 of section 302 of the act. (40 Stat. 398, 406.) Inquiry as to whether a disability existed prior to enlistment should not be made in the case of a soldier who was found physically fit and accepted for general military service. (Ops. J. A. G. O. 04.6129, Dec. 11, 1918.)

There could of course be no question but that, for purposes of compensation, every soldier should be considered, under the existing law, as physically sound at the time of acceptance, and under that law, even if at a latter time it could be clearly shown that a disability did exist prior to such acceptance, the soldier would nevertheless be entitled to receive compensation. However, the Surgeon General held that the war risk insurance act was without effect as regards the Military Establishment and maintained that the requirements of the Manual for the Medical Department should continue to govern medical officers in determining the line of duty status for entry on the individual reports of sickness and injury. The Adjutant General apparently at one time concurred in this opinion as shown by the following correspondence:4

DECEMBER 20, 1918.

From: The Adjutant General, United States Army.
To: The Commanding General, Camp Jackson, S. C.

1. In view of G. O. No. 47, W. D., May 11, 1918, the accompanying report of the medical officer in the case of W. W., private, Company D, 1st Provisional Regiment, 156th Depot Brigade, who died on November 20, 1918, is returned for reconsideration by the medical officer with respect to line of duty. If the medical officer adheres to his conclusion that the death of Private W. was not in line of duty, a statement will be rendered showing the reasons on which was based his conclusion.

2. Attention is also invited to the fact that the report of death is incomplete inasmuch as it is not stated whether the death of this soldier was or was not the result of his own misconduct.

3. The final statement and service record show the soldier was enlisted on February 23, 1919.

[First indorsement]

HEADQUARTERS, CAMP JACKSON, December 24, 1918.

To COMMANDING OFFICER,

Base Hospital:

For compliance.

[Second indorsement]

C. O., B. H., CAMP JACKSON, December 31, 1918.

To COMMANDING GENERAL:

Returned.

1. Private W. was admitted to base hospital less than one month after his enlistment with active pulmonary tuberculosis, both upper lobes, and was under treatment in the base hospital from March, 1918, until his death, November 20, 1919. His death was not in line of duty for the following reasons:

Length of service, less than one month before diagnosis was made.
Was not acute tuberculosis.
Was not brought on by any illness contracted in the Army.
So far as known the cause of death was not the result of his own willful misconduct.
Correction of report of death made as per paragraph 2 of letter.


594

[Third indorsement]

HEADQUARTERS, CAMP JACKSON, S. C.,January 1, 1919.

To THE ADJUTANT GENERAL:

1. Returned, inviting attention to second indorsement.

[Fourth indorsement]

ADJUTANT GENERAL'S OFFICE, January 18, 1919.

To the COMMANDING GENERAL,

Camp Jackson, S. C.
Returned.

1. The statement set forth in the second indorsement is insufficient. Further information is desired as to whether there is unmistakable evidence that the disease resulting in the soldier's death existed prior to enlistment.

[Fifth indorsement]

HEADQUARTERS, CAMP JACKSON, S. C., January 22, 1919.

To the COMMANDING OFFICER,

Base Hospital, Camp Jackson, S. C.
For compliance.

[Sixth indorsement]

COMMANDING OFFICER, BASE HOSPITAL,

Camp Jackson, S. C., January 31, 1919.

To THE ADJUTANT GENERAL:

Returned.

1. There is no unmistakable evidence that the illness existed prior to enlistment other than that as set forth in the second indorsement.

[Seventh indorsement]

201 (C) W., W. (Pvt.)

HEADQUARTERS, CAMP JACKSON, S. C., February 3, 1919.

To THE ADJUTANT GENERAL OF THE ARMY,
        Washington, D. C.
               
Attention invited to sixth indorsement.

[Eighth indorsement]

WAR DEPARTMENT,
 

ADJUTANT GENERAL'S OFFICE,
                                    February 8, 1919.

To the SURGEON GENERAL OF THE ARMY.

1. Referred, with request for his opinion as to whether the death of the late Pvt. W. W., Company D, 1st Provisional Regiment, 156th Depot Brigade, should be regarded as having been incurred in line of duty and also not the result of his own misconduct.

2. The records show that this soldier was enlisted February 23, 1918.

By order of the Secretary of War.

[Ninth indorsement]

S. G. O. 201 W., M.

WAR DEPARTMENT,

SURGEON GENERAL'S OFFICE,

February 14, 1919.

To THE ADJUTANT GENERAL OF THE ARMY.

1. Returned.
2. Paragraph 448, Manual Medical Department, as amended by Changes, M. M. D. No. 8, provides:

An officer, army field clerk, or field clerk, Quartermaster Corps, who has been passed as fit for service on physical examination upon entrance into the service, or a soldier or member of the Nurse Corps who has been accepted on his or her first physical examination after


595

arrival at a military station as fit for service, shall be considered to have contracted in the line of duty any subsequently determined physical disability, unless such disability can be shown to be the result of the patient's own carelessness, misconduct, or vicious habits, or to have been contracted while absent from duty without permission, or unless the history of the case shows unmistakably that the disability existed prior to entrance into the service.

3. In the case in question the history as obtained by questioning the soldier evidently did not show that the disability existed prior to entrance into the military service. However, it is believed the physical examination revealed a pathological condition of the lungs of such a degree that the disability must have existed prior to entrance into the military service. It is requested that the opinion of the Judge Advocate General be obtained as to whether the results of physical or other examination are to be considered as a part of the history of the case as this term is used in the above paragraph, or whether the history consists only of the verbal or written statement of the patient or others.

For the Surgeon General:

[Tenth indorsement]

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICE,

February 21, 1919

To the JUDGE ADVOCATE GENERAL:

1. Attention is invited to the foregoing correspondence. The opinion of the Judge Advocate General of the Army, as indicated by the Surgeon General of the Army in the ninth indorsement, is requested.

[Eleventh indorsement]

WAR DEPARTMENT,

JUDGE ADVOCATE GENERAL'S OFFICE
 

February 24, 1919.

To THE ADJUTANT GENERAL:

1. The question presented is whether the death of W. W., late private, Company D, 1st Provisional Regiment, 156th Depot Brigade, was in line of duty and not the result of his own willful misconduct. Was admitted to the base hospital, Camp Jackson, S. C., one month after his enlistment, suffering with active pulmonary tuberculosis, and was under treatment in said hospital from March, 1918, until his death, November 20, 1918. The commanding officer of the base hospital reports that "so far as known, his death was not the result of his own misconduct," but is of the opinion that it was not in line of duty for the following reasons: "(1) Length of service, less than one month before diagnosis was made; (2) was not acute tuberculosis; (3) was not brought on by any illness contracted in the Army."

2. Under the foregoing statement of facts the only question to be determined is whether the death occurred in the line of duty. The commanding officer of the base hospital gives it as his opinion that it was not in the line of duty, apparently because the disease must have existed at the time of enlistment. Section 300 of the war risk insurance act, as amended by section 10 of the act of June 25, 1918 (Pub. 175, 65th Cong.), provides that an officer, enlisted man, or other member of the military service "shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service." This statute creates a conclusive presumption, and W. must be held to have died in line of duty.

[Twelfth indorsement]

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICE,

March 10, 1919.

To the SURGEON GENERAL OF THE ARMY:

1. Attention is invited to the opinion of the Judge Advocate General of the Army as set forth in the eleventh indorsement, which has been approved.
2. The early return of these papers is requested.

By order of the Secretary of War.


596

[Thirteenth indorsement]

WAR DEPARTMENT,

SURGEON GENERAL'S OFFICE,

March 22, 1919.

To THE ADJUTANT GENERAL OF THE ARMY.

1. Noted.

2. Paragraph 448, M. M. D., as amended by Changes No. 8, provides in part that every physical disability from which a soldier suffers in the military service shall be considered to have been contracted in the line of duty "unless * * * or unless the history of the case shows unmistakably that the disability existed prior to entrance into the service."

3. This office does not believe that the pulmonary tuberculosis in this case could have reached the stage of development indicated in the second indorsement hereon within the period of less than one month following his enlistment. Accordingly this office must conclude, as a matter of professional or medical fact, that the pulmonary tuberculosis was contracted prior to the time the man entered the military service.

4. Conformably to the provisions of paragraph 448 of the Manual as hereinabove quoted, the Medical Department was therefore obliged to record this disability as not incurred in the line of duty. This office understands from the decision indicated in the eleventh and twelfth indorsements hereon that that record must now be changed to line of duty on the ground that the act of June 25, 1918, creates a conclusive presumption that every soldier who is accepted for military service is in sound condition when so enrolled.

5. The provisions of paragraph 448, hereinabove quoted, are, it will be observed, in conflict with that presumption, and unless they are altered medical officers hereafter, as heretofore, will be obliged to follow them. Instructions are requested whether any modification of paragraph 448 of the Manual is in contemplation to avoid the conflict which this correspondence brings out.

6. It is submitted for consideration in this regard that the rule laid down in the Manual urges the extreme limit of liberality which is compatible with the actual facts of disease, and that unless some modification thereof is made necessary by obligatory law it would be inexpedient to change that rule. This office has not understood that the proviso added to section 300 of the war risk insurance act by amendment of June 25, 1918, was intended to have or purports to have any obligatory force upon military administration. Section 300 in question relates exclusively to the payment of compensation for disabilities incurred in the military and naval services, such payment being a part of the business of the War Risk Bureau, and the proviso, dated June 25, 1918, establishes the presumption herein referred to "for the purposes of this section" only. This office would regard it as unfortunate if the proviso or law made for those purposes only should be extended by construction so as to apply to the administration of the Army with which it has ostensibly no concern, and require medical officers in many cases to express opinions which are repugnant to truth.

7. If, nevertheless, that law is to be applied to military administration, a number of collateral questions are bound to arise. Thousands of men were accepted and enrolled for limited service who upon acceptance were found to have physical defects or disqualifications for full service, among them men with one arm or one leg. Literally the law would declare them sound. It is difficult to believe, however, that the act of June 25, 1918, intends that a physical defect of this character existing before and noted at the time of enlistment shall be deemed, in derogation of the facts, to have been incurred in the line of duty in the military service.

[Fourteenth indorsement]

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICE,

April 2, 1919

To CHIEF OF STAFF:
    Requesting instructions.
A. G. 201 (W., W.) enl.


597

[Fifteenth indorsement]

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICE,

May 6, 1919.

To the SURGEON GENERAL OF THE ARMY:

1. Returned. There is no necessity for amending the Manual of the Medical Department in accordance with section 300 of the war risk insurance act as amended by section 10, Public 175, Sixty-fifth Congress, provided that the Medical Manual is adhered to in its requirement that full reasons be given by the proper medical officers whenever a decision is reached that a particular disability did not originate in line of duty.

2. It is requested that these papers be returned to this office.

[Sixteenth indorsement]

S. G. O. 201 (W. M.)

WAR DEPARTMENT,

SURGEON GENERAL'S OFFICE,

May 9, 1919.

To THE ADJUTANT GENERAL OF THE ARMY:

Returned.
1. Noted.
For the Surgeon General.

In view of this decision, when the facts in any case so warranted, the Surgeon General recommended that the disability be regarded as not incurred in line of duty, if such decision was in accordance with the requirements of the Manual for the Medical Department. These cases would then be referred to the Judge Advocate General, who in every instance held that under the provisions of section 300, war risk insurance act, as amended, the disability should be regarded as incurred in line of duty. This opinion was in every case approved by the Secretary of War. As this was in conflict with the instructions received in the fifteenth indorsement, as above quoted, the question was again presented in the following correspondence:5

SEPTEMBER 20, 1919.

From: The Adjutant General of the Army, Washington, D. C.
To: The Surgeon General of the Army, Washington, D. C.
Subject: Disability for discharge.

1. In the case of A. R., private, Company K, 22d Infantry, who was discharged on certificate of disability for discharge, August 27, 1919, attention is invited to the inclosed certificate in which the Board of medical officers state that the disqualifying disability did exist prior to enlistment and did originate in line of duty. It is thought that the opinion of the Judge Advocate General referred to is not applicable in this case.

2. An expression of opinion is desired as to whether or not the disability which disqualified Pvt. R. should be regarded as having existed prior to enlistment and whether or not such disability originated in line of duty. 

[First indorsement]

SURGEON GENERAL'S OFFICE,

WAR DEPARTMENT,
                                    September 24, 1919.

To THE ADJUTANT GENERAL OF THE ARMY:

Returned.

1. In the opinion of this office, the disability in the case of Pvt. A. R. unquestionably existed prior to entry into the military service. It is, therefore, recommended that this disability be regarded as not incurred in line of duty.


598

[Second indorsement]

ADJUTANT GENERAL'S OFFICE,

WAR DEPARTMENT,

October 1, 1919.

To the JUDGE ADVOCATE GENERAL OF THE ARMY:

1. A statement is desired embodying an expression of opinion as to whether or not the disability which disqualified Pvt. R. for military service should be regarded as having existed prior to enlistment and whether or not such disability originated in line of duty.

[Third indorsement]

WAR DEPARTMENT,

JUDGE ADVOCATE GENERAL'S OFFICE,
                                                October 2, 1919.

To THE ADJUTANT GENERAL:

1. Reference A. G. (NA) 201 (R. A.) enl., October 1, 1919, the opinion of this office is requested on the question whether or not the disability which disqualified Pvt., A. R., Company K., 22d Infantry for military service should be regarded as having existed prior to enlistment and whether or not such disability originated in line of duty.

2. The statement of the company commander in R.'s certificate of disability for discharge, Form No. 17, A. G. O., is that he was enlisted at Fort Jay, N. Y., "April 21, 9" and "became unfit for duty from present disease or injury July 19." It further appears from this certificate that this mental deficiency existed prior to enlistment; and that because of it R. was discharged at Fort Jay, N. Y., August 27, 1919.

3. Section 300 of the war risk insurance act, as amended (40 Stat. 609, 611), is as follows:

That for death or disability resulting from personal injury or disease contracted in the line of duty, by any commissioned officer or enlisted man or by any member of the Army Nurse Corps (female) or of the Navy Nurse Corps (female) when employed in the active service under the War Department or Navy Department, the United States shall pay compensation as hereinafter provided. But no compensation shall be paid if the injury or disease has been caused by his own willful misconduct: Provided, That for the purpose of this section said officer, enlisted man, or other member shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service: Provided further, That this section as amended, shall be deemed to become effective as of October sixth, nineteen hundred and seventeen.

4. It is assumed from the foregoing recitals of the certificate of disability that the date of enlistment of R. was April 21, 1919. This being the case, while the disability in question did in fact exist prior to enlistment, for the purpose of compensation under the above act R. must be held and taken to have been in sound condition when enlisted. The disability can not, of course, be traced to any misconduct subsequent to enlistment; and it, therefore, follows that for the purpose of compensation under the act aforesaid, the disability of Pvt. R. should be regarded as having been incurred in the line of duty and not as the result of his own willful misconduct.

[Fourth indorsement]

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICe,

October 21, 1919.

To the SURGEON GENERAL OF THE ARMY:

To note and return. The recommendation set forth in the third indorsement has been approved.

By order of the Secretary of War.

[Fifth indorsement]

WAR DEPARTMENT,

SURGEON GENERAL'S OFFICE,            
                                    October 28, 1919.

To THE ADJUTANT GENERAL OF THE ARMY:

1. Returned, noted.
2. No doubt is entertained that the decision made in the third indorsement hereon is inevitable so far as concerns the administration of the war risk insurance act of October 6, 1917, by the Treasury Department, and that the authorities of that department are concluded


599

in respect to line of duty by the terms of section 300 of the act cited, as amended June 25, 1918. It is submitted, however, that that law does not relate to, or govern the action of, the authorities of the Army in determining questions of line of duty, and that such authorities are free to record the truth in reference thereto, notwithstanding the conclusion of law set up by the provisions of the act of June 25, 1918.

3. The rule for determining line of duty in the Army is prescribed by the Secretary of War in paragraph 448, Manual for the Medical Department. Question whether that regulation required alteration in order to incorporate therein the conclusion of law set up by the act of June 25, 1918, was presented by thirteenth indorsement, this office, March 22 last, to The Adjutant General, in the case of W. W., and decided by the Secretary in the negative, per fifteenth indorsement, Adjutant General's Office, May 6, 1919, to the Surgeon General.

4. In conformity with the regulation cited and the ascertained facts, it would appear that the department should hold that the disability in this case existed prior to enlistment and was therefore not incurred in the line of duty.

No reply was received to the fifth indorsement. This question was constantly becoming more embarrassing. Delay was being caused in the discharge of soldiers on surgeon's certificate of disability owing to different interpretations as to line of duty status by department surgeons and by commanding officers of general hospitals and post surgeons. There was a large volume of correspondence concerning such cases. The subject was therefore again brought to the attention of The Adjutant General in the following communication:6

DECEMBER 31, 1919.

From: Commanding officer, United States Army General Hospital No. 43, National Soldiers' Home, Va.

To: Adjutant General of the Army, Washington, D. C.

Subject: Line of duty of mental cases.

1. It is requested that you furnish us a reply to our communication of December 3, 1919, concerning the line of duty of mental cases, a copy of which is inclosed for your convenience.

2. The return of the certificate of disability referred to in paragraph 4 of inclosed communication is desired in order that the soldier may be discharged.


DECEMBER 3, 1919.

From: Chief of neuropsychiatric service, United States Army General Hospital No. 43, National Soldiers' Home, Va.

Through: Commanding Officer, United States Army General Hospital No. 43.

To: Adjutant General of the Army, Washington, D. C.

Subject: Line of duty of mental cases.

1. In view of the decision of the Judge Advocate General, 220.46, February 21, 1919, it has been the policy of this hospital to discharge constitutional psychopaths, mental deficients, and practically all mental diseases in line of duty. I can recall but two exceptions: Psychosis due to venereal disease contracted since the soldier entered the service, and alcoholic psychosis, which are still held to be not in line of duty.

2. We have recently had many inquiries from The Adjutant General's Office requesting explanations as to why soldiers have been discharged in line of duty when the medical history clearly indicated that the mental condition existed prior to enlistment.

3. There has been no difficulty in our establishing the fact that many patients who have been discharged in line of duty had their mental trouble before entering the service, but we assumed that they should all be discharged in line of duty per decision 220.46, J. A. G., but in view of the numerous inquiries from The Adjutant General we believe there must be some conflicting opinion. I feel that it is my duty to bring it to the attention of higher authority that there are now a large number of men who are voluntarily enlisting and concealing the fact that they have been inmates in institutions on account of mental disease, and it is my opinion that the decision of the J. A. G. 220.46 was contemplated to govern drafted men and that G. O. 47, W. D., 1918, should govern in the case of men who voluntarily enlist.


600

4. I inclose herewith a certificate of disability and correspondence which we have had with the commanding general, Eastern Department, relative to discharging a patient not in line of duty on account of insanity that existed prior to his enlistment, and I request that you advise us in this case in order that we may act intelligently on similar cases in the future.

5. I also inclose correspondence from The Adjutant General's Office concerning another patient whose insanity existed prior to enlistment, but he was discharged in line of duty per decision of the Judge Advocate General, 220.46, February 21, 1919.

[First indorsement]

ADJUTANT GENERAL'S OFFICE,
                                             January 3, 1920.

To the SURGEON GENERAL:
One inclosure.

[Second indorsement]

WAR DEPARTMENT,

SURGEON GENERAL'S OFFICE,
                                             January 16, 1920.

To THE ADJUTANT GENERAL OF THE ARMY:
Returned.

1. Paragraph 448-a, M. M. D., as amended, provides that when the history of a case shows unmistakably that the disability existed prior to entrance into the service, such disability shall be considered as not incurred in line of duty. The Judge Advocate General of the Army has rendered decisions, which have been approved by the Secretary of War, to the effect that under the provisions of section 300 of the war risk insurance act, as amended by section 10 of the act of June 25, 1918, all cases of disability which are found after an officer or enlisted man has been examined, accepted, and enrolled for service must be held to have been incurred in line of duty.

2. In view of the discrepancy thus existing, this office, by thirteenth indorsement, dated March 22, 1919, in the case of W. W., invited attention to this fact and requested instructions as to whether any modification of paragraph 448 of the Manual was necessary. The following reply was received:

[Fifteenth indorsement]

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICE,
                                                 May 6, 1919.

A. G. O. 201 W. W. (Enl.). 

To the SURGEON GENERAL OF THE ARMY.

1. Returned. There is no necessity for amending the Manual Medical Department in accordance with section 300 of the war risk insurance act as amended by section 10, Public, 175, Sixty-fifth Congress, provided that the Medical Manual is adhered to in its requirements that full reasons be given by the proper medical officers whenever a decision is reached that a particular disability did not originate in line of duty.

*    *    *    *    *    *    *

3. In view of this decision, it is the opinion of this office that whenever the history of a case shows unmistakably that the disability existed prior to entrance into the service, such disability should be regarded as not incurred in line of duty, unless there is evidence that the disability was aggravated by the military service, in which event the aggravation in disability only should be regarded as incident to the service and as incurred in line of duty. The desirability of such action and reasons therefor have been stated by this office in the thirteenth indorsement referred to above. With the return to voluntary enlistment it becomes increasingly important that the provisions of paragraph 448 be adhered to, since otherwise any physically defective civilian who is able to deceive the recruiting examiner may, after discharge for disability, become a charge upon the Government.

4. It is understood by this office that at some stations the provisions of paragraph 448-a, as amended, are not complied with and that soldiers with disabilities clearly existing prior to entry into the service are certified to be eligible for discharge for conditions "existing prior


601

to enlistment and in line of duty," this action being based on the decisions of the Judge Advocate General published on pages 263 of Digest for October, 1918, and 94 and 95 of Digest for February, 1919. It is further understood that in many instances, after the discharge has been accomplished, the papers are returned to their point of origin from your office for a statement as to why the soldiers have been discharged in line of duty when the history clearly indicated that the condition leading to discharge existed prior to entry into the service.

5. The approved opinions of the Judge Advocate General of the Army regarding many special cases appear to be in conflict with the decision rendered in the above-mentioned fifteenth indorsement, Adjutant General's Office. Furthermore, the decision contained in the fifteenth indorsement has not been promulgated to the service, in so far as this office is aware. Consequently, great confusion of thought exists among medical officers as to the proper entry regarding line of duty on certificates of disability.

6. It is therefore recommended that the policy of the War Department in regard to such entries as shown in the fifteenth indorsement be published to the service, in order that the medical authorities may no longer be placed in the position of initiating action which is in conflict with fact and manifestly opposed to the interests of the Government.

[Third indorsement]

A. G. 220.811 Enl.

WAR DEPARTMENT,

ADJUTANT GENERAL'S OFFICE,
                                            February 5, 1920

To the SURGEON GENERAL:

1. Inclosed herewith is advanced copy of Section III, General Orders, No. 7, January 31, 1920.

2. The original communication of December 3, 1919, from commanding officer, United States Army General Hospital No. 43, has been returned to the commanding general, Eastern Department, for compliance with General Orders, No. 7.

By order of the Secretary of War.

The general order referred to in third indorsement is as follows:

General Orders No. 7. 

WAR DEPARTMENT,

Washington, January 30, 1920.

*    *    *    *    *    *    *

III. Determination of line of duty in disability cases.-In order to secure uniformity and consistency in the findings of medical officers with respect to line-of-duty origin of certain disabilities, the existence of which disabilities prior to entry into service has been established, all concerned in preparing certificates of disability or reports of death will be guided by both Section II, General Orders, No. 47, War Department, 1918, relative to disability existing prior to entry into service and section 300, war risk insurance act, as amended by the act of Congress approved June 25, 1918 (p. 10, Bul. No. 41, W. D., 1918), and as further amended by the act of Congress approved December 24, 1919 (p. 4, Bul. No. 1, W. D., 1920), which provides that from April 6, 1917, for the purposes of the war risk insurance act, any person who is examined, accepted, and enrolled for service shall be held to have been in sound condition. The cause of death or origin of disability will be fully set forth, and if death or disability is not due to the person's own misconduct, but, under the provisions of Section II, General Orders, No. 47, can not for other reasons be considered in line of duty, the determination as to line of duty will be stated as follows:

Disability (or death) is regarded as having been incurred in line of duty within the purview of section 300, war risk insurance act, approved October 6, 1917, as amended by act, of Congress approved June 25, 1918, and as further amended by act of Congress approved December 24, 1919, but not in line of duty for other purposes.

*    *    *    *    *    *    *

By order of the Secretary of War:

(Signed)

PEYTON C. MARCH,
General, Chief of Staff

Official:
    P. C. HARRIS,
        The Adjutant General.


602

General Orders, No. 7, definitely settled the question of the determination regarding the line of duty status in any given case and prescribed the notation to be made on certificates of disability and reports of deaths, thereby preventing further complication to that extent. However, this order still left doubt as to the proper entry to be made on sick and wounded register cards (Form 52, M. D.), since they were not mentioned in the order, and presumably must be prepared as required by the Manual for the Medical Department.

Another act of great importance in respect to the disabled entitled to compensation was now enacted. Prior to December 24, 1917, the Director of the Bureau of War Risk Insurance repeatedly held that a drafted man was not in the service of the United States under the provisions of the war risk insurance act until he had been accepted for military service at the mobilization camp to which he had been assigned.7 In the act of Congress, approved December 2, 1919, amending the war risk insurance act, the following provisions are included:

SEC. 7 That a new section is hereby added to the war risk insurance act, to be known as section 31, and to read as follows:

SEC. 31. That if after induction by the local draft board, but before being accepted and enrolled for active service, the person died or became disabled as a result of disease contracted or injury suffered in the line of duty and not due to his own willful misconduct involving moral turpitude, or as a result of the aggravation, in the line of duty and not because of his own willful misconduct involving moral turpitude of an existing disease or injury, he or those entitled thereto shall receive the benefits of compensation payable under Article III: Provided, That any insurance application made by a person after induction by the local draft board, but before being accepted and enrolled for active service, shall be deemed valid.

Under the provisions of this section any man inducted by a local draft board who died or became disabled while en route from the point of induction to a mobilization camp or while at the camp before acceptance was placed under the provisions of the original war risk insurance act with reference to compensation or necessary medical, surgical, and hospital treatment.

SPECIAL CONSIDERATIONS GOVERNING LINE OF DUTY DECISIONS IN PULMONARY TUBERCULOSIS, MENTAL CONDITIONS, AND VENEREAL DISEASE

The general subject of line of duty has now been considered, but it is still necessary to look into this question from the standpoint of certain specific conditions. The three types of disease which have been of special interest in this connection are: Pulmonary tuberculosis, mental conditions, venereal diseases.

PULMONARY TUBERCULOSIS

The question of tuberculosis always has presented numberous difficulties with reference to existence before enlistment. Usually it has proved impossible to give sufficient time to the examination of an individual recruit to permit of a chest examination which, so far as might be, would afford conclusive evidence. At the regular recruit depots, the custom always prevailed of rejecting many men by reason of "poor physique" and in this way many cases of tuberculosis, especially those with moderate involvement, were undoubtedly prevented from entering the Army. With the physical examination under the selective service act, however, such general causes of rejection were not authorized. Therefore, undoubtedly, men frequently were accepted with incipient or slightly developed


603

pulmonary tuberculosis, or with old inactive lesions. Sooner or later men of the former class came on sick report and the disease was discovered. Naturally the question then arose as to whether the disease existed prior to enlistment or had developed as an incident to the service. As has been previously explained, prior to the World War no hard and fast rules had been laid down for the determination of this question, each medical officer being guided in each case by his own professional judgment after consideration of the history and the results of physical examinations, including X-ray plates. In general it may be said that cases of tuberculosis developing within six months after enlistment usually were considered as not incurred in line of duty unless the extent of the lesion was so great as to render it morally certain that it had existed for a greater time than the enlistment period. With this method of determination, there were certainly but few cases in which justifiable complaint concerning the findings of medical officers could be made.

However, there were cases in which a soldier, who had apparently recovered from a pulmonary tuberculosis prior to his enlistment, might, after a considerable period of service, again show active evidences of this disease. If the old lesion were considered in such cases, an injustice to the soldier would be done, since such disability should always be considered as in line of duty. Mistakes of this character, though uncommon, had to be carefully guarded against.

With the onset of the World War and the appointment of boards of tuberculosis specialists to examine all members of the Regular Army and of the National Guard then in the service, and to act on all registrants before their induction, it became necessary to have more definite rulings on the subject of tuberculosis than had previously existed. Consequently, on September 11, 1917, the Surgeon General issued the following circular:

Circular No. 24

WAR DEPARTMENT,
OFFICE OF THE SURGEON GENERAL,
Washington, September 11, 1917

LINE OF DUTY

The following rules will be observed in determining whether pulmnonary tuberculosis has been contracted in the line of duty:

A case of chronic tuberculosis in which the length of service is three months or less shall be considered to be not in line of duty; cases of acute tuberculosis shall be considered to be in line of duty in all cases, irrespective of length of service. When action must be taken in cases in which the distinction between acute and chronic forms is not made, cases of three months' or longer service shall be considered to be not in line of duty unless it be shown that the patient has had some disease since enlistment, such as measles, which may be expected to reactivate tuberculosis, or unless there is a history of excessive fatigue or of exposure in line of duty calculated to break down the resistance of the individual.

(Signed)

W. C. GORGAS,
Surgeon General.

Approved by order of the Secretary of War, September 12, 1917. (710, O. D., A. G. O.)

The definite instructions given above materially aided in clarifying the situation, as the question thus was reduced practically to a consideration of the number of months' service. It was, however, constantly the policy of the tuberculosis section of the Surgeon General's Office to give any benefit of doubt to the soldier in questionable cases. The two indorsements next quoted clearly show this:


604

[First indorsement]

SGO 220.8 (Discharges)

WAR DEPARTMENT,
SURGEON GENERAL'S OFFICE,
May 13 1918

To THE ADJUTANT GENERAL OF THE ARMY.

*    *    *    *    *    *    *

2. Cases * * * are sometimes met with in which it seems altogether probable that the disability is of long standing, and in such cases the Government appears to suffer injustice. It is, however, better that such rulings should be made because there is a very large number of cases which present some slight evidence of impairment of pulmonary integrity which would be classed as evidence of tuberculosis by many examiners. If such slight signs are admitted as evidence of tuberculosis which existed previous to enlistment, many cases will be diagnosticated as tuberculosis in which the disease is of no clinical importance and large numbers of soldiers are in danger of being discharged for tuberculosis who have not had the disease; or in case some of them later develop tuberculosis which is really incurred in line of duty there is danger that the presence of these old lesions will lead to a decision that the disability was not incurred in line of duty, which would be unjust to the soldier.

3. In view of this state of affairs, it is not expedient that Army medical officers should be permitted to render decision as to the age of the pulmonary lesion if they base their decision solely upon an interpretation of physical signs.


AUGUST 2, 1918

Memorandum for Colonel Van Dusen:9

1. The diagnosis in the case of M. D. was acute pulmonary tuberculosis. The requirement of three months' service only applies to chronic pulmonary tuberculosis. According to Circular 24, S. G. O., all cases of acute pulmonary tuberculosis should be considered "in line of duty." This soldier was enlisted as a well man, and the acute exacerbation which Captain Ogden speaks of in the seventh indorsement occurred subsequent to entrance into the service. Who can say that he would have had this exacerbation if he had remained out of the Army and continued a mode of living which was successfully keeping quiescent an old tuberculous focus?

2. It is the opinion of the undersigned that the tuberculous soldier should be given the benefit of the doubt and, unless there is an unmistakable history of pulmonary tuberculosis existing prior to enlistment, his disability be marked in line of duty. It is recommended that the records in the case of M. D. be amended to show that the disability for which he was discharged was incurred in line of duty.

(Signed)

E. H. BRUNS,
Lieut. Col. Medical Corps, N. A.

The provisions of Circular No. 24 were superseded by Section II, General Orders, No. 47, War Department, 1918, and paragraph 448-a, Manual for the Medical Department, as amended by Changes No. 8 (previously quoted), which continued to be the only regulations of the War Department for the determination of the line of duty status. The decisions and final action regarding these regulations have already been given. Since soldiers discharged from the service subsequent to April 6, 1917, come under the provisions of the war risk insurance act, and this act prescribes that they be considered as having been sound at the time of acceptance, any case of pulmonary tuberculosis (like other cases) is necessarily regarded, for compensation purposes, as incurred in line of duty. Furthermore, subsequent acts have much extended the time after discharge when tuberculosis is assumed to have been contracted in the service.

The reports of the Surgeon General indicate that 3,640 men were discharged from the Army in 1917 by reason of pulmonary tuberculosis, 9,660 in


605

1918, and 6,439 in 1919.10 The great majority of the discharges during 1917 were after April 6.10 This makes a total of 19,739 men separated from the service because of pulmonary tuberculosis during the period under consideration; there still remained, on November 1, 1919, over 3,000 tuberculous patients in Army hospitals,11 most of whom will eventually be added to the number of discharges.

MENTAL DISEASES

Many of the mental diseases which lead to the discharge of soldiers on certificate of disability belong to a class in which there is an inherently weak nervous system upon which the mental disease is engrafted. A history of this unstable mentality frequently can be elicited. Such men while they remain in civil life are often able to adapt themselves to the existing environment; they can do and act more or less as they please and can change places of occupation and residence when they desire. For these reasons no actual nervous breakdown occurs and the individual, though recognized as peculiar, may not be regarded as actually insane. Put such a man in the military service where he is necessarily governed by strict discipline and the breakdown comes. Doubtless such disabilities should be regarded as incurred in line of duty when it can not be definitely shown that an actual psychosis existed prior to enlistment.

There are other mental and nervous diseases, however, in which the military service could have had no deleterious effect on the individual.

It was the policy of the Surgeon General to be most liberal, under the provisions of the Manual for the Medical Department, with reference to the interpretation of line of duty in mental cases, especially those who had been under any peculiar stress and strain while in the service. The correspondence (sixth indorsement, February 14, 1919) below is an illustration of this fact. With the passage of the war risk insurance act, already mentioned, all mental cases (save those due to misconduct while in the service) were regarded for compensation purposes as in line of duty.

VENEREAL DISEASES

In the third group of cases mentioned above, the venereal diseases, will be found the greatest discrepancy between the pre-war regulations of the War Department and the provisions of the war risk insurance act. Prior to the passage of this act, it had always been customary for medical officers to record all venereal diseases, together with their complications and sequelę, as not in line of duty, unless they were convinced, in exceptional cases, that the infection was innocent or accidental. Under the provisions of the war risk insurance act the soldier is technically sound when accepted for service and is entitled to compensation and hospital treatment for any disability afterwards detected, unless incurred through his own misconduct. It is believed there has been no decision as to the exact definition of the word "misconduct" in its relation to this law, but decisions rendered by the Judge Advocate General with reference to the term in its bearing on loss of pay when absent from duty for conditions due to misconduct, under the provisions of General Orders, No. 31, 1912, and No. 45, 1914, War Department, have held that exposure to venereal disease


606

must have occurred after the current enlistment in order to constitute "misconduct." By analogy the same interpretation would hold for the war risk insurance act, and consequently venereal disease contracted before enlistment or induction could not be considered the result of "misconduct" within the meaning of the law.

Shortly after we entered the war, questions began to arise regarding the determination of line of duty in these circumstances, and the following correspondence indicates the position ultimately assumed by the Surgeon General and the action of the War Department thereon. In expressing this opinion the Surgeon General showed much greater liberality than had previously been customary in similar instances.

[Sixth indorsement]

WAR DEPARTMENT,
SURGEON GENERAL'S OFFICE,
February 14, 1919

To THE ADJUTANT GENERAL OF THE ARMY:

Returned.

1. Under the provisions of paragraph 448, M. M. D., officers and enlisted men who have been accepted for service at any military station after the first physical examination, "shall be considered to have contracted in the line of duty any subsequently determined physical disability, unless such disability can be shown to be the result of the patient's own carelessness, misconduct, or vicious habits, * * * or unless the history of the case shows unmistakably that the disability existed prior to entrance into the service."

2. There are two classes of cases involved in the determination of "line of duty" status of soldiers recommended for discharge on account of late manifestations of syphilis: First, the class in which the disease has been contracted since entrance into the service. Second, the class in which the disease existed at the time of entrance into the service. The disease in cases of the first class would be held to be the result of the soldier's own "misconduct" and therefore incurred not "in line of duty." The same ruling would ordinarily follow for any subsequently developed disability resulting from the disease. The determination of "line of duty" status in cases of the second class is more difficult. In these cases there is no "misconduct" involved. (Digest, J. A. G., p. 12, Digest of Opinions, J. A. G., April, 1918). Under Special Regulations, 65, War Department, syphilis is no longer a cause for rejection for military service. Many thousands of known syphilitics have been accepted and given active field service during the present war. A certain small percentage of syphilitics will develop insanity (paresis) as a development of the disease, whether in civil life or in the military service. The great majority of syphilitics do not develop the mental disability (paresis). The fact must be recognized, however, that every syphilitic accepted for the military service is a potential paretic. Several cases of insanity (paresis) have been returned from France during the present war, in which the history has shown definite physical and mental stress in combat, and which in the opinion of competent medical officers has been the responsible immediate cause in precipitating the mental breakdown. While the disability (paresis) in these cases is caused by syphilis, it is the opinion of competent psychiatrists that these men might never have suffered a mental breakdown, or at least it might have been delayed for many years, if the soldier had been permitted to remain in his home environment and be spared the stress and hardships of active military service. When it is shown that the insanity (paresis) has been precipitated by the stress or strain of active service, though the remote cause of the disability is known to be syphilis, it is believed that the disability should be held as incurred "in line of duty."

3. No modification or change in existing regulations (par. 448, M. M. D.) appears necessary or desirable. Each case should be determined on its merits, after a careful review of the medical history and consideration of the length and character of service and all other facts pertinent to the case. Under the above interpretation of paragraph 448, M. M. D., there will be a few cases of disability resulting from stress of active service in which the remote


607

cause was venereal infection, in which the disability will be held to be "in line of duty." In the view of this office, a distinction may be made in these cases between the disability for which the soldier is discharged and the disease causing the disability. A soldier is discharged on account of insanity, the cause of which is syphilis. The soldier probably had the disease when accepted for service, but at that time there was no disability. The Government, in accepting such men for service, under the draft act, should assume the responsibility for any subsequent disability that may develop as a result of military service.

4. The cases of Pvt. G. G. and Wagoner C. A. P., referred to in this correspondence, were recommended for discharge on account of disability "in line of duty," as it was shown clearly in the medical history that stress of active service was responsible for hastening the progress of the disease and causing the mental breakdown. The disease (syphilis) in both cases existed in latent form when the men entered the service, but the disability itself was held to have developed as a result of service and therefore "in line of duty." The case of J. E., 7th Company, Coast Artillery Corps, is not properly comparable with the two cases previously referred to in this paragraph. The medical history in the E. case is not complete, and this office can not express an opinion without further information. If it is shown that the primary infection was contracted since the soldier entered the service, the disease should be held as due to "misconduct" and not "in line of duty."2

5. Reference of this paper to the Judge Advocate General of the Army for decision is recommended.

[Seventh indorsement]

201 E. J. Enl

WAR DEPARTMENT,
ADJUTANT GENERAL'S OFFICE,

February 19, 1919.

To the JUDGE ADVOCATE GENERAL OF THE ARMY:

1. Referred with request for an expression of opinion as to whether or not the disability resulting in the discharge of Pvt. E. should be regarded as having been incurred in line of duty.

By order of the Secretary of War.

[Eighth indorsement]

WAR DEPARTMENT,

JUDGE ADVOCATE GENERAL'S OFFICE,
                                         February 21, 1919

To THE ADJUTANT GENERAL:

1. The opinion of this office is requested upon the question whether the disability resulting in the discharge of Pvt. J. E. should be regarded as having been incurred in line of duty. It appears that Pvt. E. was accepted for full military service at Fort Slocum, N. Y., December 11, 1914, and performed full military duty up to and including July 26, 1918; that he was discharged January 20, 1919, for disability on account of cerebrospinal syphilis; and that his medical history shows no infection subsequent to enlistment.

2. It is the opinion of this office that the disability resulting in the discharge of Pvt. E. should be regarded as having been incurred in line of duty. He was accepted for full military service and performed full military duty for more than three years. The disease which ultimately caused his disability, if existing at the time of his enlistment, was latent. In the absence of any showing of any misconduct on the part of the enlisted man during the period of his service contributing to cause the disease, the disability must be regarded as having been incurred in line of duty, particularly in view of the provisions of section 300 of the war risk insurance act, as amended by the act of June 25, 1918 (Pub. 175, 65th Cong.), which specifically requires that, for the purposes of compensation under said act, an enlisted man shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service.


608

[Ninth indorsement]

ADJUTANT GENERAL'S OFFICE,
                                 February 28, 1919.

To the ASSISTANT SECRETARY OF WAR:

Recommending approval of the opinion of the Judge Advocate General of the Army, as set forth in the eighth indorsement.

Steps to obtain a revision of the law in this respect were taken by the War Department in the following letter:

AG 011.3

WAR DEPARTMENT,
Washington, April 15, 1920

The honorable the SECRETARY OF THE TREASURY.

SIR: I desire to bring to your attention the desirability of securing an amendment to the first proviso of section 300 of the war risk insurance act (40 Stat. 398, 405), as amended by the act of June 25, 1918 (40 Stat. 609, 611) and by the act of December 24, 1919 (Public No. 104, 66th Cong.), which reads as follows:

Provided, That for the purpose of this section said officer, enlisted man, or other member shall be held and taken to have been in sound condition when examined, accepted, and enrolled for service.

The effect of this proviso is to create a conclusive presumption of soundness when men are accepted for service. Yet, as more fully appears from extracts from a memorandum submitted by the Surgeon General and which are inclosed, it frequently happens that diseases or defects which are actually existent at the time of acceptance can not be detected by means of such a medical examination as is possible at the time, but when later discovered can be clearly shown to have existed prior to acceptance.

It may be that during the emergency, when men were drafted into the service, such an attitude on the part of the Government toward them as is manifested in this proviso may have been justified, but, as appears from the extracts from the Surgeon General's report, to which reference has already been made, it has been the cause of the loss of millions of dollars to the Government, and the policy thus enunciated should not be continued now that voluntary enlistments have been resumed; also, the tendency will be to encourage the enlistment of men with latent diseases or defects, thus shifting of the burden of their care to the Federal Government, where it does not properly belong.

There ought not, it seems to me, to be any objection to creating in favor of the men accepted for service that presumption of soundness which naturally arises from the fact of acceptance, but this presumption, instead of being conclusive should be rebuttable, should be overcome by a determination, carefully made and sustained by clear and convincing proof, that the disability was incurred prior to acceptance for service.

I am transmitting this letter to you and also to the Secretary of the Treasury because I feel that if those departments which are concerned with this matter are in accord as to their views respecting it, remedial legislation should speedily be requested of Congress. I submit for your consideration the following amendment, which it is believed will protect the interests of the men accepted for service and at the same time safeguard the interests of the Government.

A BILL To amend section 300 of the war risk insurance act, as amended by the act of June 25, 1918, and by the act of December 24, 1919

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the first proviso of section 300 of the war risk insurance act, as amended by the act of June 25, 1918, and by the act of December 24, 1919, be amended to read as follows: Provided, That for the purpose of this section said officer, enlisted man, or other member shall be presumed to have been in sound condition when examined, accepted, and enrolled for service but that such presumption may be overcome when, under such regulations as may be prescribed by the Secretary of War, the Secretary of the Navy, or the Secretary of the Treasury, depending on the service into which the officer, enlisted man, or other member has been accepted, it is shown by clear and convincing proof that the disability found to exist subsequent to acceptance for service nevertheless existed prior to acceptance: Provided further, That if it be as shown that the disability existed prior to acceptance for


609

service, but there is reason to believe that it has been aggravated by his service, then compensation shall be payable under the provisions of this act only to the extent that the disability has been aggravated: And provided further, That no rights which have already accrued shall be affected by this amendment.

Respectfully,

NEWTON D. BAKER,
Secretary of War.

REFERENCES

(1) Sixth indorsement, War Department, J. A. G. O., April 1, 1919, to The Adjutant General. On file, Record Room, Correspondence File, J. A. G. O., 220.46, and A. G. O., 201 (Kilpatrick, Edgar M.).

(2) Eleventh indorsement, War Department, J. A. G. O., March 6, 1919, to The Adjutant General. On file, Record Room, Correspondence File, J. A. G. O., 220.46, and A. G. O. 201 (Haley, Bud).

(3) Fourth indorsement, War Department, J. A. G. O., March 18, 1919, to The Adjutant General. On file, Record Room, Correspondence File, J. A. G. O., 220.46, and A. G. O. 201 (Beckley, Allen L.).

(4) Letter from The Adjutant General to the commanding general, Camp Jackson, S. C., dated December 20, 1918, on case of William Walker, with fifteenth indorsement, War Department, A. G. O., May 6, 1919, to the Surgeon General. On file, Record Room, S. G. O., Correspondence File, 201 (Walker, William).

(5) Letter from The Adjutant General to the Surgeon General of the Army, dated September 20, 1919, on Disability for Discharge (approved by Secretary of War, October 20, 1919), with indorsements. On file, Record Room, S. G. O., Correspondence File, 201 (Russo, Angeo).

(6) Letter from the commanding officer, United States Army General Hospital No. 43, National Soldiers' Home, Va., to The Adjutant General, December 31, 1919, re line of duty of mental cases, with copies of inclosures. On file, Record Room, A. G. O., Correspondence File, 220.811 (Misc. Div.).

(7) Decisions of acting general counsel for Bureau of War Risk Insurance, July 2, 1919. On file, Library of War Veterans' Bureau.

(8) First indorsement, War Department, S. G. O., May 13, 1918, to The Adjutant General of the Army. On file, Record Room, S. G. O., Correspondence File, 220.9 (Discharge).

(9) Memorandum for Col. Van Dusen, August 2, 1918, from Lieut. Col. Bruns. On file, Record Room, S. G. O., Correspondence File, 201 (Duggan, Michael).

(10) Annual reports of the Surgeon General, United States Army, 1918, 560; 1919, Vol. I., CCLVIII; 1920, 682.

(11) Based on sick and wounded reports made to the Surgeon General.