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 hasbeen the expression of a professional opinion by the medical officer concernedwhether a disability arising in the course of a soldier's service andnecessitating his discharge was in consequence of such service, or, in militaryparlance, was "in line of duty." This was deemed necessary from themilitary standpoint in view of the fact that from our earliest history as anation our Government has considered itself obligated to compensate soldierssuffering 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 tomilitary pensions was a resolution passed by Congress on August 26, 1776, inwhich it was provided that all soldiers in the Revolutionary War who had lost alimb, or otherwise had become disabled, should be granted a pension. Since thattime various statutes of the United States have provided for the payment ofpensions to any person disabled as a result of military service. As thedisability must have been incurred "in line of duty," the WarDepartment has always required an expression of opinion on this point from themedical 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 (whichamended the act of September 2, 1914, authorizing the establishment of theBureau of War Risk Insurance), the monetary relief allotted to a disabledsoldier after discharge from the Army, or to the relative of a deceased soldier,was known as a "pension." Since the date of the above-mentionedenactment the term "compensation" has been used. Prior to this act theconsideration of all questions relative to the adjudication and payment ofpensions had for many years been under the jurisdiction of the Bureau ofPensions. While this bureau did not consider final the opinion of the WarDepartment as to whether a death or disability was incurred in line of duty ornot in line of duty, nevertheless it is safe to say that the adjustments made bythe Pension Bureau were in the vast majority of cases based upon the records ofthe War Department. For this reason an expression of opinion regarding the lineof duty status in each instance was regarded by every medical officer of theArmy as of great consequence, since he must assure himself that no injustice bedone to any individual, while at the same time safeguarding the interests of theGovernment. If there were any uncertainty in a given case, the soldier receivedthe benefit of the doubt; rarely could exception be taken to the decisionreached. Certain pensions for alleged disability were granted, however, byspecial acts. For some such bills neither the opinion of the War Department northat of the Pension
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Bureau exercised any influence. Yet, under the old pensionsystem, the adjudication of claims generally was largely based on professionalopinion-in the first instance, that of medical officers.
Since the passage of the amendment of October 6, 1917, to thewar risk insurance act, all soldiers discharged subsequent to the above date ofapproval, and certain soldiers discharged since April 6 of that year, wereentitled to compensation but not to pension. The disbursement of compensation isunder control of the Bureau of War Risk Insurance, a branch of the TreasuryDepartment; the Pension Bureau is not concerned.a
The directions which for many years before the World Warguided medical officers in determining whether or not a disease or injury wasincurred in line of duty were published in the Manual for the MedicalDepartment. In the 1916 edition of this Manual, the edition in effect duringthe World War, paragraph 448-a reads as follows:
All diseases or injuries from which an officer or enlistedman suffers while in the military service of the United States may be assumed tohave occurred in the line of duty; unless the surgeon knows: First, that thedisease or injury existed before entering the service; second, that it wascontracted while absent from duty without permission; or, third, that itoccurred in consequence of willful neglect or immoral conduct of the manhimself. When the patient is admitted for an operation or procedure which isdesigned to improve his physical fitness or efficiency for the military service,such operation or procedure will be recorded as in line of duty, withoutreference to the fact whether the condition to be remedied originated in theline of duty or not, provided that the primary cause is not the result of thepatient's own misconduct.
The provisions quoted were in effect until May 11, 1918, whenGeneral Orders, No. 47, War Department, 1918, were issued; Section II thereofreads as follows:
Hereafter any soldier who shall have been accepted on hisfirst physical examination after arrival at a military station as fit forservice shall be considered to have contracted any subsequent determinedphysical disability in the line of duty unless such disability can be shown tobe the result of his own carelessness, misconduct, or vicious habits, or unlessthe history of the case shows unmistakably that the disability existed prior toentrance into the service. The same ruling shall apply in the cases of officerswho have been passed as fit for service on physical examination upon entranceinto the service.
On June 15, 1918, the Manual for the Medical Department wasamended 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, QuartermasterCorps, who has been passed as fit for service on physical examination uponentrance into the service or a soldier or member of the Nurse Corps who has beenaccepted on his or her first physical examination after arrival at a militarystation as fit for service shall be considered to have contracted in the line ofduty any subsequently determined physical disability, unless such disability canbe shown to be the result of the patient's own carelessness, misconduct, orvicious habits, or to have been contracted while absent from duty withoutpermission, or unless the history of the case shows unmistakably that thedisability existed prior to entrance into the service. When the admission is foran operation or procedure which is designed to improve the patient's physicalfitness or efficiency for the military service, such operation or procedure willbe recorded as in the line of duty, without reference to the fact whether thecondition to be remedied originated in the line of duty or not, provided thatthe primary cause is not the result of the patient's own misconduct.
aThe functions of the Bureau of War RiskInsurance wereinvested in the United States, Veterans' Bureau, August 9, 1921.-Ed.
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In arriving at a conclusion as to whether a disease or injurywas incurred in line of duty, there was seldom any cause for hesitancy in theearlier days in rendering the decision except in cases where it was a questionwhether the disability had existed before entrance into the military service.Until May, 1918, the existing regulations placed the responsibility for thisdecision directly on the medical officer concerned, who must satisfy himselfwhether or not the physical defect existed prior to such service. In determiningthis question he necessarily relied on his judgment in each case, basing hisopinion not only upon the history obtainable but also upon the extent andcharacter of any lesions which existed, interpreted in the light of hisprofessional knowledge. Especial attention was given to the degree ofinvolvement of any part of the body which was affected as related to the lengthof service of the individual soldier concerned. If the medical officer wasthoroughly satisfied (after having obtained any necessary consultation which wasavailable) that the disability must have existed prior to the onset of thepatient's military career, the condition was regarded as not incurred in lineof duty and such a notation was made on the official records of the individualunder examination.
The line of reasoning was as follows: At the time applicantsfor enlistment are examined for entrance into the military service, it issometimes impossible for the medical examiner to detect certain types ofdefects. Individuals having enuresis, epilepsy, incipient dementia pr?cox,paresis, and psychoneurosis, or defective mentality, will sometimes inevitablybe accepted by the most competent and conscientious examiner. Certain cases ofinactive tuberculosis also will be passed. Numerous other puzzling conditionsmight be mentioned, and the number of cases escaping detection at once willalways be greater under a press of work and with inexperienced examiners.Soldiers with such undetected serious defects will necessarily soon come up fordischarge because of physical disability; and if a medical officer can thendetermine the true facts, strict justice can be done and at the same time theGovernment will be saved a very large sum which otherwise would be paid out inpensions 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, asquoted above, it was realized that a strict interpretation of the word"history" would greatly restrict the investigation which the medicalofficer was required to make in determining the line of duty status. Thequestion at once arose whether the term "history" meant solely astatement obtained from the patient, or from others, relative to his physicalcondition prior to enlistment, or, whether the results of physical examinations,laboratory findings, X-ray plates, etc., could be included in this term. Thematter was submitted to the Judge Advocate General for an opinion (see case ofW. W., p. 593), but this particular phase of the question was ignored. It wasthe opinion of the Surgeon General, however, that the word "history"in medical nomenclature refers exclusively to the statement of the patient, orto statements of others having direct knowledge as to the patient's previouscondition, and that only facts so elicited should be considered in thisconnection. Therefore, it was also his opinion that a medical officer would bejustified in classing such a case as not in line of duty solely when a definiteand unmis-
590
takable statement that the disability actually existed priorto entering the service was obtainable. It was regarded as fairly certain thatin most cases when there was such a history a thorough questioning of thesoldier would bring out the facts.
Having considered the provisions of the Manual for theMedical Department and the general orders of the War Department, under whichmedical officers were required to act in the determination of line of dutystatus, we now come to consideration of the war risk insurance act.
It will be observed that all of the preceding regulationsprovided that, from the military point of view, a disability clearly establishedby the history to have existed prior to enlistment was not in line of duty. Fromthe compensation standpoint a new factor was introduced by the war riskinsurance act. Section 300 of this act, as amended, is as follows:
That for death or disability resulting from personal injurysuffered or disease contracted in the line of duty, by any commissioned officeror enlisted man or by any member of the Army Nurse Corps (female) or of the NavyNurse Corps (female) when employed in the active service under the WarDepartment or Navy Department, the United States shall pay compensation ashereinafter provided; but no compensation shall be paid if the injury or diseasehas been caused by his own willful misconduct: Provided, that for thepurposes of this section said officer, enlisted man, or other member shall beheld and taken to have been in sound condition when examined, accepted andenrolled for service: Provided further, that this section, as amended,shall be deemed to become effective as of October sixth, nineteen hundred andseventeen.
An amendment to this section, approved December 24, 1919,provided that the benefits of the act should become effective April 6, 1917, inplace of October 6.
The feature of section 300 which demands specialconsideration at this point is the provision that every officer, enlisted man,or nurse "shall be held and taken to have been in sound condition whenexamined, accepted, and enrolled for service." There could be but oneinterpretation of this act. Every such person who had been accepted for servicewas at that time legally in "sound condition"; consequently, anydisability discovered thereafter while such person remained in the service(unless incurred through the individual's willful misconduct or when absentwithout leave) was, for purposes of compensation, in line of duty, even thoughthe history clearly showed that it existed before entering into the militarycontract. This was a revolutionary change involving greatly increasedobligations on the part of the Government and in consequence increasing itsexpenditures for compensation by millions of dollars annually.
General Orders, No. 47, War Department, 1918, and paragraph448-a, Manual for the Medical Department, were in nowise modified to meetthe provisions of the war risk insurance act in this respect. The existence ofthe law, as applying to such cases, was unknown to many officers, and theycontinued to follow the requirements of the Medical Department Manual and thegeneral orders. Some officers who were cognizant of the law believed that it hadno bearing on the War Department and that in preparing reports regardingsickness and discharge they must be guided by the instructions issued in theofficial War Department publications. It was therefore to be expected, as
591
was the case, that in a short timenumerous complaints and requests for changes in individual reports regardingline of duty status would begin to arise. The Judge Advocate General of the Armyconsistently held that, for purposes of compensation, any disability whichexisted prior to entry into the service must be regarded by the militaryauthorities as incurred in line of duty, since the law declared the soldiersound at the time of acceptance. It was furthermore held by the Judge AdvocateGeneral that no attempt should be made by medical officers concerned toascertain the history of the soldier prior to his entrance into the Army.Several of these opinions of the Judge Advocate General, which were approved bythe 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. Theopinion of this office is requested whether or not the disability resulting inthe discharge of, K. E. M., private, Battalion 15, Camp Greenleaf, MedicalDepartment, United States Army should be regarded as in line of duty and not theresult of his own misconduct. Lieut. Clarence R. Miller, assistant campneuropsychiatrist, made an examination of Private K. on August 20, 1918, andrecommended his discharge for disability, dementia pr?cox, paranoid type, andstated that the disability occurred prior to the enlistment. Private K. wasdischarged 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 himsince 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 madeunfounded accusations against him with officers; that he thought they were goingto have him court-martialed. He became despondent and homesick. He admittedhaving contemplated suicide several times, but attempted it only once. He haddelusions of persecution, showed some thought blocking, and had some insightinto his condition.
3. It is the opinion of this office that, under paragraph 2of General Orders, No. 47, May 11, 1918, the disease should be regarded ashaving been incurred in line of duty. (Ops. J. A. G. 220.4, July 31, 1918.) Withrespect to compensation under Article III, section 300, of the war riskinsurance 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. Theopinion of this office is requested upon the question whether or not the deathof Pvt. B. H., Company G, 3d Infantry, should be regarded as having beenincurred 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 theaccused was not responsible for his acts, and that the death was in line of dutyand not the result of the decedent's own willful misconduct. The proceedingswere sent back for consideration of the question whether
592
the mental condition of the accused was incident to or aresult of his military service or whether it existed prior to enlistment. Theboard then found that the mental condition existed prior to enlistment, andamended the third paragraph of its original findings so as to find that thedeath was not in line of duty.
2. The death of Pvt. B. H. should be regarded as having beenincurred in line of duty and not as the result of his own misconduct. Theevidence is ample to support the findings of the board to the effect that thedeath was the result of suicide and that at the time of the suicide the decedentwas not mentally responsible for his act. The fact that the mental condition mayhave existed prior to enlistment is entirely immaterial. Section 300 of the warrisk 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 beenin sound condition when examined, accepted, and enrollod for service.
(Signed) E. H. CROWDER,
Judge Advocate General.
WAR RISK INSURANCE; LINE OF DUTY; PRESUMPTION OF SOUNDPHYSICAL CONDITION AT TIME OF ENLISTMENT
A soldier five months after enlistment was discharged on asurgeon's certificate of disability. The board of medical officers based itsfindings that the disease, dementia pr?cox, was incurred prior to enlistmentand not in line of duty, upon the statement of the soldier that about four yearspreviously he had had serious domestic trouble and at that time had been in asanitarium and was restless and worried. Held, that, under paragraph 2 ofGeneral Order No. 47, May 11, 1918, the disease should be regarded as havingbeen incurred in line of duty. (Ops. J. A. G. 220.4, July 31, 1918.) Withrespect to compensation under Article III, section 300, of the war riskinsurance act, as amended (40 Stat, 398, 405), a soldier must be regarded as insound 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. shouldbe regarded as having occurred in line of duty and not as the result of his ownwillful misconduct. It appears that M. was inducted into the service by localboard No. 3, County of York, York, Pa., on August 31, 1918, and reported on thatdate to the training detachment, Spring Garden Institute; that at 6.45 p. m. ofthe 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 theactive military service within the meaning of Article III of the war riskinsurance act when he is inducted into the service, that he should be regardedas in sound condition at the time of such induction, and that any superveningdisability occurring while he was in a duty status should ordinarily be regardedas 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 riskinsurance act until after he has been finally examined and accepted by the Armysurgeons 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 ofthe Bureau is conclusive upon this point. Consequently, within the rulings ofthe Bureau of War Risk Insurance, the death of Private M. must be regarded ashaving occurred not in line of duty, although it can not be regarded as havingoccurred 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 TOACCEPTANCE FOR GENERAL MILITARY SERVICE; LATENT DEFECTS
A soldier was inducted into the service and accepted bytheboard of Army surgeons at a camp as physically qualified for general militaryservice. Subsequently he became disabled. If disability resulted from anaggravation of a disease which the soldier had prior to his acceptance forservice and such aggravation was cause by his military service and not by hiswillful misconduct, he is entitled to compensation under section 300 of the warrisk insurance act. (40 Stat. 398, 405.) If he is entitled to such compensation,he is also entitled to reasonable medical, surgical, and hospital services, asprovided 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 bemade in the case of a soldier who was found physically fit and accepted forgeneral military service. (Ops. J. A. G. O. 04.6129, Dec. 11, 1918.)
There could of course be no question but that, for purposesof compensation, every soldier should be considered, under the existing law, asphysically sound at the time of acceptance, and under that law, even if at alatter time it could be clearly shown that a disability did exist prior to suchacceptance, the soldier would nevertheless be entitled to receive compensation.However, the Surgeon General held that the war risk insurance act was withouteffect as regards the Military Establishment and maintained that therequirements of the Manual for the Medical Department should continue to governmedical officers in determining the line of duty status for entry on theindividual reports of sickness and injury. The Adjutant General apparently atone 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, theaccompanying report of the medical officer in the case of W. W., private,Company D, 1st Provisional Regiment, 156th Depot Brigade, who died on November20, 1918, is returned for reconsideration by the medical officer with respect toline of duty. If the medical officer adheres to his conclusion that the death ofPrivate W. was not in line of duty, a statement will be rendered showing thereasons on which was based his conclusion.
2. Attention is also invited to the fact that the report ofdeath is incomplete inasmuch as it is not stated whether the death of thissoldier was or was not the result of his own misconduct.
3. The final statement and service record showthe soldierwas 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 onemonth 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 wasmade.
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 hisown willful misconduct.
Correction of report of death made as per paragraph 2 ofletter.
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. Furtherinformation is desired as to whether there is unmistakable evidence that thedisease 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 toenlistment 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 latePvt. W. W., Company D, 1st Provisional Regiment, 156th Depot Brigade, should beregarded as having been incurred in line of duty and also not the result of hisown 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 hasbeen passed as fit for service on physical examination upon entrance into theservice, or a soldier or member of the Nurse Corps who has been accepted on hisor her first physical examination after
595
arrival at a military station as fit for service, shall beconsidered to have contracted in the line of duty any subsequently determinedphysical disability, unless such disability can be shown to be the result of thepatient's own carelessness, misconduct, or vicious habits, or to have beencontracted while absent from duty without permission, or unless the history ofthe case shows unmistakably that the disability existed prior to entrance intothe service.
3. In the case in question the history as obtained byquestioning the soldier evidently did not show that the disability existed priorto entrance into the military service. However, it is believed the physicalexamination revealed a pathological condition of the lungs of such a degree thatthe disability must have existed prior to entrance into the military service. Itis requested that the opinion of the Judge Advocate General be obtained as towhether the results of physical or other examination are to be considered as apart of the history of the case as this term is used in the above paragraph, orwhether the history consists only of the verbal or written statement of thepatient 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. Theopinion of the Judge Advocate General of the Army, as indicated by the SurgeonGeneral 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., lateprivate, Company D, 1st Provisional Regiment, 156th Depot Brigade, was in line ofduty and not the result of his own willful misconduct. Was admitted to the basehospital, Camp Jackson, S. C., one month after his enlistment, suffering withactive pulmonary tuberculosis, and was under treatment in said hospital fromMarch, 1918, until his death, November 20, 1918. The commanding officer of thebase hospital reports that "so far as known, his death was not the resultof his own misconduct," but is of the opinion that it was not in line ofduty for the following reasons: "(1) Length of service, less than one monthbefore diagnosis was made; (2) was not acute tuberculosis; (3) was not broughton by any illness contracted in the Army."
2. Under the foregoing statement of facts the onlyquestion to be determined is whether the deathoccurred in the line of duty. The commanding officer of the base hospital givesit as his opinion that it was not in the line of duty, apparently because thedisease must have existed at the time of enlistment. Section 300 of the warrisk 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 themilitary service "shall be held and taken to have been in sound conditionwhen examined, accepted, and enrolled for service." This statute creates aconclusive 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 AdvocateGeneral of the Army as set forth in the eleventh indorsement, which has beenapproved.
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 inthe military service shall be considered to have been contracted in the line ofduty "unless * * * orunless the history of the case shows unmistakably that the disability existedprior to entrance into the service."
3. This office does not believe that the pulmonarytuberculosis in this case could have reached the stage of development indicatedin the second indorsement hereon within the period of less than one monthfollowing his enlistment. Accordingly this office must conclude, as a matter ofprofessional or medical fact, that the pulmonary tuberculosis was contractedprior to the time the man entered the military service.
4. Conformably to the provisions of paragraph 448 of theManual as hereinabove quoted, the Medical Department was therefore obliged torecord this disability as not incurred in the line of duty. This officeunderstands from the decision indicated in the eleventh and twelfth indorsementshereon that that record must now be changed to line of duty on the ground thatthe act of June 25, 1918, creates a conclusive presumption that every soldierwho 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 arealtered medical officers hereafter, as heretofore, will be obliged to followthem. Instructions are requested whether any modification of paragraph 448 ofthe Manual is in contemplation to avoid the conflict which this correspondencebrings out.
6. It is submitted for consideration in this regard that therule laid down in the Manual urges the extreme limit of liberality which iscompatible with the actual facts of disease, and that unless some modificationthereof is made necessary by obligatory law it would be inexpedient to changethat rule. This office has not understood that the proviso added to section 300of the war risk insurance act by amendment of June 25, 1918, was intended tohave or purports to have any obligatory force upon military administration.Section 300 in question relates exclusively to the payment of compensation fordisabilities incurred in the military and naval services, such payment being apart of the business of the War Risk Bureau, and the proviso, dated June 25,1918, establishes the presumption herein referred to "for the purposes ofthis section" only. This office would regard it as unfortunate if theproviso or law made for those purposes only should be extended by constructionso as to apply to the administration of the Army with which it has ostensiblyno concern, and require medical officers in many cases to express opinions whichare repugnant to truth.
7. If, nevertheless, that law is to be applied to militaryadministration, a number of collateral questions are bound to arise. Thousandsof men were accepted and enrolled for limited service who upon acceptance werefound to have physical defects or disqualifications for full service, among themmen with one arm or one leg. Literally the law would declare them sound. It isdifficult to believe, however, that the act of June 25, 1918, intends that aphysical defect of this character existing before and noted at the time ofenlistment shall be deemed, in derogation of the facts, to have been incurredin 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 Manualof the Medical Department in accordance with section 300 of the war riskinsurance act as amended by section 10, Public 175, Sixty-fifth Congress,provided that the Medical Manual is adhered to in its requirement that fullreasons be given by the proper medical officers whenever a decision is reachedthat a particular disability did not originate in line of duty.
2. It is requested that these papers be returned to thisoffice.
[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 sowarranted, the Surgeon General recommended that the disability be regarded asnot incurred in line of duty, if such decision was in accordance with therequirements of the Manual for the Medical Department. These cases would then bereferred to the Judge Advocate General, who in every instance held that underthe provisions of section 300, war risk insurance act, as amended, thedisability should be regarded as incurred in line of duty. This opinion was in every case approved by the Secretary of War. As thiswas in conflict with the instructions received in the fifteenth indorsement, asabove 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, 22dInfantry,who was discharged on certificate of disability for discharge, August 27, 1919,attention is invited to the inclosed certificate in which the Board of medicalofficers state that the disqualifying disability did exist prior to enlistmentand did originate in line of duty. It is thought that the opinion of the JudgeAdvocate General referred to is not applicable in this case.
2. An expression of opinion is desired as to whether or notthe disability which disqualified Pvt. R. should be regarded as having existedprior to enlistment and whether or not such disability originated in line ofduty.
[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 inthe caseof Pvt. A. R. unquestionably existed prior to entry into the military service.It is, therefore, recommended that this disability be regarded as not incurredin 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 ornot the disability which disqualified Pvt. R. for military service should beregarded as having existed prior to enlistment and whether or not suchdisability 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 ofthis office is requested on the question whether or not the disability whichdisqualified Pvt., A. R., Company K., 22d Infantry for military service shouldbe regarded as having existed prior to enlistment and whether or not suchdisability originated in line of duty.
2. The statement of the company commander in R.'s certificate ofdisability for discharge, Form No. 17, A. G. O., is that he was enlisted atFort Jay, N. Y., "April 21, 9" and "became unfit for duty frompresent disease or injury July 19." It further appears from thiscertificate that this mental deficiency existed prior to enlistment; and thatbecause 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 diseasecontracted in the line of duty, by any commissioned officer or enlisted man orby 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 NavyDepartment, the United States shall pay compensation as hereinafter provided.But no compensation shall be paid if the injury or disease has been caused byhis own willful misconduct: Provided, That for the purpose of thissection said officer, enlisted man, or other member shall be held and taken tohave been in sound condition when examined, accepted, and enrolled for service:Provided further, That this section as amended, shall be deemed to becomeeffective as of October sixth, nineteen hundred and seventeen.
4. It is assumed from the foregoing recitals of the certificate of disabilitythat the date of enlistment of R. was April 21, 1919. This being the case, whilethe disability in question did in fact exist prior to enlistment, for thepurpose of compensation under the above act R. must be held and taken to havebeen in sound condition when enlisted. The disability can not, of course, betraced to any misconduct subsequent to enlistment; and it, therefore, followsthat for the purpose of compensation under the act aforesaid, the disability ofPvt. R. should be regarded as having been incurred in the line of duty and notas 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 hasbeen 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 indorsementhereon is inevitable so far as concerns the administration of the war riskinsurance act of October 6, 1917, by the Treasury Department, and that theauthorities of that department are concluded
599
in respect to line of duty by the terms of section 300 of theact cited, as amended June 25, 1918. It is submitted, however, that that lawdoes not relate to, or govern the action of, the authorities of the Army in determining questions of line of duty, and that suchauthorities are free to record the truth in reference thereto, notwithstandingthe conclusion of law set up by the provisions of the act of June 25, 1918.
3. The rule for determining line of duty inthe Army isprescribed by the Secretary of War in paragraph 448, Manual for the MedicalDepartment. Question whether that regulation required alteration in order toincorporate 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 TheAdjutant General, in the case of W. W., and decided by the Secretary inthe negative, per fifteenth indorsement, Adjutant General's Office,May 6, 1919, to the Surgeon General.
4. In conformity with the regulation cited andtheascertained facts, it would appear that the department should hold that thedisability in this case existed prior to enlistment and was therefore notincurred in the line of duty.
No reply was receivedto the fifth indorsement. This question was constantlybecoming more embarrassing. Delay was being caused in the discharge of soldierson surgeon's certificate of disability owing to different interpretations asto line of duty status by department surgeons and by commanding officers ofgeneral hospitals and post surgeons. There was alarge volume of correspondence concerning such cases. The subject was therefore again brought to the attention of The AdjutantGeneral 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 ourcommunication of December 3, 1919, concerning the line of duty of mentalcases, a copy of which is inclosed for your convenience.
2. The return of the certificate of disability referred toin paragraph 4 of inclosed communication is desired in order that the soldiermay 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 AdvocateGeneral,220.46, February 21, 1919, it has been the policy of this hospital to dischargeconstitutional psychopaths, mental deficients, and practically all mentaldiseases in line of duty. I can recallbut two exceptions: Psychosis due to venereal disease contracted sincethesoldier entered the service, and alcoholic psychosis, which are still held to benot in line of duty.
2. We have recently had many inquiries from TheAdjutantGeneral's Office requesting explanations as to why soldiers have beendischarged in line of duty when the medical history clearly indicated that themental condition existed prior to enlistment.
3. There has been no difficulty in our establishing the factthat many patients who have been discharged in line of duty had their mentaltrouble before entering the service, but we assumed that they should all bedischarged in line of duty per decision 220.46, J. A. G., but in view of thenumerous inquiries from The Adjutant General we believe there must be someconflicting opinion. I feel that it is my duty to bring it to the attention ofhigher authority that there are now a large number of men who are voluntarilyenlisting and concealing the fact that they have been inmates in institutions onaccount 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 andcorrespondence which we have had with the commanding general, EasternDepartment, relative to discharging a patient not in line of duty on account ofinsanity 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 thefuture.
5. I also inclose correspondence from The Adjutant General'sOffice concerning another patient whose insanity existed prior to enlistment,but he was discharged in line of duty per decision of the Judge AdvocateGeneral, 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 thatwhen the history of a case shows unmistakably that the disability existedprior to entrance into the service, such disability shall be considered as notincurred in line of duty. The Judge Advocate General of the Army has rendereddecisions, which have been approved by the Secretary of War, to the effect thatunder the provisions of section 300 of the war risk insurance act, as amendedby section 10 of the act of June 25, 1918, all cases of disability which arefound after an officer or enlisted man has been examined, accepted, andenrolled for service must be held to have been incurred in line of duty.
2. In view of the discrepancy thus existing, this office, bythirteenth indorsement, dated March 22, 1919, in the case of W. W., invitedattention to this fact and requested instructions as to whether anymodification of paragraph 448 of the Manual was necessary. The followingreply 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 actas amended by section 10, Public, 175, Sixty-fifth Congress, provided that the Medical Manualis adhered to in its requirements that full reasons be given by the proper medical officerswhenever a decision is reached that a particular disability did not originate in line of duty.
* * * * * * *
3. In view ofthis decision, it is the opinion of this office that whenever the history of acase shows unmistakably that the disability existed prior to entrance into theservice, such disability should be regarded as not incurred in line of duty,unless there is evidence that the disability was aggravated by the militaryservice, in which event the aggravation in disability only should be regardedas incident to the service and as incurred in line of duty. The desirabilityof such action and reasons therefor have been stated by this office in thethirteenth indorsement referred to above. With the return to voluntaryenlistment it becomes increasingly important that the provisions of paragraph448 be adhered to, since otherwise any physically defective civilian who is ableto deceive the recruiting examiner may, after discharge for disability, becomea charge upon the Government.
4. It is understood by this office that at some stations theprovisions of paragraph 448-a, as amended, are not complied with and thatsoldiers with disabilities clearly existing prior to entry into the service arecertified to be eligible for discharge for conditions "existing prior
601
to enlistment and in line of duty," this action beingbased on the decisions of the Judge Advocate Generalpublished on pages 263 of Digest for October, 1918, and 94 and 95 of Digest forFebruary, 1919. It is further understood that in many instances, after thedischarge has been accomplished, the papers are returned to their point oforigin from your office for a statement as to why the soldiers have beendischarged in line of duty when the history clearly indicated that the conditionleading to discharge existed prior to entry into the service.
5. The approved opinions of the Judge Advocate General of theArmy regarding many special cases appear to be in conflict with the decisionrendered in the above-mentioned fifteenth indorsement, Adjutant General'sOffice. Furthermore, the decision contained in the fifteenth indorsement has notbeen promulgated to the service, in so far as this office is aware.Consequently, great confusion of thought exists among medical officers as to theproper entry regarding line of duty on certificates of disability.
6. It is therefore recommended that the policy of the WarDepartment in regard to such entries as shown in the fifteenth indorsement bepublished to the service, in order that the medical authorities may no longer beplaced in the position of initiating action which is in conflict with fact andmanifestly 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, GeneralOrders, No. 7, January 31, 1920.
2. The original communication of December 3, 1919, fromcommanding officer, United States Army General Hospital No. 43, has beenreturned to the commanding general, Eastern Department, for compliance withGeneral Orders, No. 7.
By order of the Secretary of War.
The general order referred to in third indorsement is asfollows:
General Orders No. 7.
WAR DEPARTMENT,
Washington, January 30, 1920.
* * * * * * *
III. Determination of line ofduty in disability cases.-In order to secure uniformity and consistency inthe findings of medical officerswith respect to line-of-duty origin of certain disabilities, the existence ofwhich disabilities prior to entry into service has been established, allconcerned in preparing certificates of disability or reports of death will beguided by both Section II, General Orders, No. 47, War Department, 1918,relative to disability existing priorto entry into service and section 300, war risk insurance act, as amended by theact of Congress approved June 25, 1918 (p. 10, Bul.No. 41, W. D., 1918), and as further amended by the act of Congress approvedDecember 24, 1919 (p. 4, Bul. No. 1, W. D., 1920), which provides that fromApril 6, 1917, for the purposes of the war risk insurance act, any person who isexamined, accepted, and enrolled for service shall be held to have been in soundcondition. 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 otherreasons be considered in line of duty, the determination as to line of duty willbe stated as follows:
Disability (or death) is regarded as having been incurred inline of duty within the purview of section 300, war risk insurance act, approvedOctober 6, 1917, as amended by act, of Congress approved June 25, 1918, and asfurther amended by act of Congress approved December 24, 1919, but not in lineof 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 thedetermination regarding the line of duty status in any given case and prescribedthe notation to be made on certificates of disability and reports of deaths,thereby preventing further complication to that extent. However, this orderstill left doubt as to the proper entry to be made on sick and wounded registercards (Form 52, M. D.), since they were not mentioned in the order, andpresumably must be prepared as required by the Manual for the MedicalDepartment.
Another act of great importance in respect to the disabledentitled to compensation was now enacted. Prior to December 24, 1917, theDirector of the Bureau of War Risk Insurance repeatedly held that a drafted manwas not in the service of the United States under the provisions of the war riskinsurance act until he had been accepted for military service at themobilization camp to which he had been assigned.7 In the act ofCongress, approved December 2, 1919, amending the war risk insurance act, thefollowing provisions are included:
SEC. 7 That a new section is hereby added tothe 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 orbecame disabled as a result of disease contracted or injury suffered in theline of duty and not due to his own willful misconduct involving moralturpitude, or as a result of the aggravation, in the line of duty and notbecause of his own willful misconduct involving moral turpitude of an existingdisease or injury, he or those entitled thereto shall receive the benefits ofcompensation payable under Article III: Provided, That any insuranceapplication made by a person after induction by the local draft board, butbefore being accepted and enrolled for active service, shall be deemed valid.
Under the provisions of this section any man inducted by alocal draft board who died or became disabled while en route from the point ofinduction to a mobilization camp or while at the camp before acceptance wasplaced under the provisions of the original war risk insurance act withreference to compensation or necessary medical, surgical, and hospitaltreatment.
SPECIAL CONSIDERATIONS GOVERNING LINE OF DUTY DECISIONS INPULMONARY 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 ofcertain specific conditions. The three types of disease which have been ofspecial interest in this connection are: Pulmonary tuberculosis, mentalconditions, venereal diseases.
PULMONARY TUBERCULOSIS
The question of tuberculosis always has presented numberousdifficulties with reference to existence before enlistment. Usually it hasproved impossible to give sufficient time to the examination of an individualrecruit to permit of a chest examination which, so far as might be, would affordconclusive evidence. At the regular recruit depots, the custom always prevailedof rejecting many men by reason of "poor physique" and in this waymany cases of tuberculosis, especially those with moderate involvement, wereundoubtedly prevented from entering the Army. With the physical examinationunder the selective service act, however, such general causes of rejection werenot authorized. Therefore, undoubtedly, men frequently were accepted withincipient or slightly developed
603
pulmonary tuberculosis, or with old inactive lesions. Sooneror later men of the former class came on sick report and the disease was discovered. Naturally the question then arose as towhether the disease existed prior to enlistment or had developed as an incidentto the service. As has been previously explained, prior to the World War no hardand fast rules had been laid down for the determination of this question, eachmedical officer being guided in each case by his own professional judgmentafter consideration of the history and the results of physical examinations,including X-ray plates. In general it may be said that cases of tuberculosisdeveloping within six months after enlistment usually were considered as notincurred in line of duty unless the extent of the lesion was so great as torender it morally certain that it had existed for a greater time than theenlistment period. With this method of determination, there were certainly butfew cases in which justifiable complaint concerning the findings of medicalofficers could be made.
However, there were cases in which a soldier, who hadapparently recovered from a pulmonary tuberculosis priorto his enlistment, might, after a considerable period ofservice, again show active evidences of this disease. If the old lesion wereconsidered in such cases, an injustice to the soldier would be done, since suchdisability should always be considered as in line of duty. Mistakes of thischaracter, though uncommon, had to be carefully guarded against.
With the onset of the World War and the appointment of boardsof tuberculosis specialists to examine all members of the Regular Army and ofthe National Guard then in the service, and to act on all registrants beforetheir induction, it became necessary to have more definite rulings on thesubject of tuberculosis than had previously existed. Consequently, on September11, 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 whetherpulmnonary tuberculosis has been contracted in the line of duty:
A case of chronic tuberculosis in which thelength ofservice 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 allcases, irrespective of length of service. When action must be taken in cases inwhich the distinction between acute and chronic forms is not made, cases ofthree months' or longer service shall be considered to be not in line of dutyunless it be shown that the patient has had some disease since enlistment,such as measles, which may be expected to reactivate tuberculosis, or unlessthere is a history of excessive fatigue or of exposure in lineof 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 inclarifying the situation, as the question thus was reduced practically to aconsideration of the number of months' service. It was, however, constantlythe policy of the tuberculosis section of the Surgeon General's Office to giveany benefit of doubt to the soldier in questionable cases. The two indorsementsnext 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 thatthe disabilityis of long standing, and in such cases the Government appears to sufferinjustice. It is, however, better that such rulings should be made becausethere is a very large number of cases which present some slight evidence ofimpairment of pulmonary integrity which would be classed as evidence oftuberculosis by many examiners. If such slight signs are admitted as evidenceof tuberculosis which existed previous to enlistment, many cases will bediagnosticated as tuberculosis in which the disease is of no clinical importanceand large numbers of soldiers are in danger of being discharged for tuberculosis whohave not had the disease; or in case some of them laterdevelop tuberculosis which is really incurred in line of duty there is dangerthat the presence of these old lesions will lead to a decision that thedisability was not incurred in line of duty, which would be unjust to thesoldier.
3. In view of this state of affairs, it is not expedient thatArmy medical officers should be permitted to render decision as to the age ofthe pulmonary lesion if they base their decision solely upon an interpretationof physical signs.
AUGUST 2, 1918
Memorandum for Colonel Van Dusen:9
1. The diagnosis in the case of M. D. was acute pulmonarytuberculosis. The requirement of three months' service only applies to chronicpulmonary tuberculosis. According to Circular 24, S. G. O., all cases of acutepulmonary tuberculosis should be considered "in line of duty." Thissoldier was enlisted as a well man, and the acute exacerbation which CaptainOgden speaks of in the seventh indorsement occurred subsequent to entranceinto the service. Who can say that he would have had this exacerbation if hehad remained out of the Army and continued a mode of living which wassuccessfully keeping quiescent an old tuberculous focus?
2. It is the opinion of the undersigned that thetuberculous soldier should be given the benefit of the doubt and, unless thereis an unmistakable history of pulmonary tuberculosis existing prior toenlistment, his disability be marked in line of duty. It is recommended thatthe records in the case of M. D. be amended to show that the disability forwhich 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 SectionII, General Orders, No. 47, War Department, 1918, and paragraph 448-a, Manualfor the Medical Department, as amended by Changes No. 8 (previously quoted),which continued to be the only regulations of the War Department for thedetermination of the line of duty status. The decisions and final actionregarding these regulations have already been given. Since soldiers dischargedfrom the service subsequent to April 6, 1917, come under the provisions of thewar risk insurance act, and this act prescribes that they be considered ashaving been sound at the time of acceptance, any case of pulmonary tuberculosis(like other cases) is necessarily regarded, for compensation purposes, asincurred in line of duty. Furthermore, subsequent acts have much extended thetime after discharge when tuberculosis is assumed to have been contracted in theservice.
The reports of the Surgeon General indicate that 3,640 menwere discharged from the Army in1917 by reason of pulmonary tuberculosis, 9,660 in
605
1918, and 6,439 in 1919.10 Thegreat majority of the discharges during 1917 were after April 6.10 This makes a total of 19,739 men separated from theservice because of pulmonary tuberculosis during the period under consideration;there still remained, on November 1, 1919, over 3,000 tuberculous patients inArmy hospitals,11 most of whom will eventually be added to the number ofdischarges.
MENTAL DISEASES
Many of the mental diseases which lead to the discharge ofsoldiers on certificate of disability belong to a class in which there is aninherently weak nervous system upon which the mental disease is engrafted. Ahistory of this unstable mentality frequently can be elicited. Such men whilethey remain in civil life are often able to adapt themselves to the existingenvironment; they can do and act more or less as they please and can changeplaces of occupation and residence when they desire. For these reasons no actualnervous breakdown occurs and the individual, though recognized as peculiar, maynot be regarded as actually insane. Put such a man in the military servicewhere he is necessarily governed by strict discipline and the breakdown comes.Doubtless such disabilities should be regarded as incurred in line of duty whenit can not be definitely shown that an actual psychosis existed prior toenlistment.
There are other mental and nervous diseases, however, inwhich the military service could have had no deleterious effect on theindividual.
It was the policyof the Surgeon General to be most liberal, under the provisions of the Manualfor the Medical Department, with reference to the interpretation of line ofduty in mental cases, especially those who had been under any peculiar stressand strain while in the service. The correspondence (sixth indorsement, February14, 1919) below is an illustration of this fact. With the passage of the warrisk insurance act, already mentioned, all mental cases (save those due tomisconduct while in the service) were regarded for compensation purposes as inline of duty.
VENEREAL DISEASES
In the third group of cases mentioned above, the venerealdiseases, will be found the greatest discrepancy between the pre-war regulationsof the War Department and the provisions of the war risk insurance act. Prior tothe passage of this act, it had always been customary for medical officers torecord all venereal diseases, together with their complications and sequel?, asnot in line of duty, unless they were convinced, in exceptional cases, that theinfection was innocent or accidental. Under the provisions of the war riskinsurance act the soldier is technically sound when accepted for service and isentitled to compensation and hospital treatment for any disability afterwardsdetected, unless incurred through his own misconduct. It is believed there hasbeen no decision as to the exact definition of the word "misconduct"in its relation to this law, but decisions rendered by the Judge AdvocateGeneral with reference to the term in its bearing on loss of pay when absentfrom duty for conditions due to misconduct, under the provisions of GeneralOrders, No. 31, 1912, and No. 45, 1914, War Department, have held that exposureto venereal disease
606
must have occurred after the current enlistment in order toconstitute "misconduct." By analogy the same interpretation would holdfor the war risk insurance act, and consequently venereal disease contractedbefore 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 ariseregarding the determination of line of duty in these circumstances, and thefollowing correspondence indicates the position ultimately assumed by theSurgeon General and the action of the War Department thereon. In expressing thisopinion the Surgeon General showed much greater liberality than had previouslybeen 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., officersand enlisted men who have been accepted for service at any military stationafter the first physical examination, "shall be considered to havecontracted in the line of duty any subsequently determined physical disability,unless such disability can be shown to be the result of the patient's owncarelessness, misconduct, or vicious habits, * * * orunless the history of the case shows unmistakably that the disability existedprior to entrance into the service."
2. There are two classes of cases involved in thedetermination of "line of duty" status of soldiers recommended fordischarge on account of late manifestations of syphilis: First, the class inwhich 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 thesoldier's own "misconduct" and therefore incurred not "in line of duty." The same rulingwould ordinarily follow for anysubsequently developed disability resulting from the disease. The determinationof "line of duty" status in cases of the second class is moredifficult. In these cases there is no "misconduct" involved.(Digest, J. A. G., p. 12, Digest of Opinions, J. A. G., April, 1918). UnderSpecial Regulations, 65, War Department, syphilis is no longer a cause forrejection for military service. Many thousands of known syphilitics have beenaccepted and given active field service during the present war. A certainsmall percentage of syphilitics will develop insanity (paresis) as adevelopment 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 acceptedfor the military service is a potential paretic. Several cases of insanity(paresis) have been returned from France during the present war, in which thehistory has shown definite physical and mental stress in combat, and which inthe opinion of competent medical officers has been the responsible immediatecause in precipitating the mental breakdown. While the disability (paresis) inthese cases is caused by syphilis, it is the opinion of competentpsychiatrists that these men might never have suffered a mental breakdown, orat least it might have been delayed for many years, if the soldier had beenpermitted to remain in his home environment and be spared the stress andhardships 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 isbelieved that the disability should be held as incurred "in line of duty."
3. No modification or change in existingregulations (par.448, M. M. D.) appears necessary or desirable. Each case should be determinedon its merits, after a careful review of the medical history and considerationof the length and character of service and all other facts pertinent to thecase. Under the above interpretation of paragraph 448, M. M. D., there will be afew cases of disability resulting from stress of active service in which theremote
607
cause was venereal infection, in which the disability willbeheld to be "in line of duty." In the view of this office, adistinction may be made in these cases between the disability for which thesoldier is discharged and the disease causing the disability. A soldier isdischarged on account of insanity, the cause of which is syphilis. The soldierprobably had the disease when accepted for service, but at that time there wasno disability. The Government, in accepting such men for service, under thedraft act, should assume the responsibility for any subsequent disability thatmay develop as a result of military service.
4. The cases of Pvt. G. G. and Wagoner C. A. P., referred toin this correspondence, were recommended for discharge on account of disability"in line of duty," as it was shown clearly in the medical historythat stress of active service was responsible for hastening the progress of thedisease and causing the mental breakdown. The disease (syphilis) in both casesexisted in latent form when the men entered the service, but the disabilityitself was held to have developed as a result of service and therefore "inline of duty." The case of J. E., 7th Company, Coast Artillery Corps, isnot properly comparable with the two cases previously referred to in thisparagraph. The medical history in the E. case is not complete, and this officecan not express an opinion without further information. If it is shown that theprimary infection was contracted since the soldier entered the service, thedisease should be held as due to "misconduct" and not "in line ofduty."2
5. Reference of this paper to the Judge Advocate General ofthe 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 towhether or not the disability resulting in the discharge of Pvt. E. should beregarded 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 questionwhether the disability resulting in the discharge of Pvt. J. E. should beregarded as having been incurred in line of duty. It appears that Pvt. E. wasaccepted for full military service at Fort Slocum, N. Y., December 11, 1914, andperformed full military duty up to and including July 26, 1918; that he wasdischarged January 20, 1919, for disability on account of cerebrospinalsyphilis; and that his medical history shows no infection subsequent toenlistment.
2. It is the opinion of this office that the disabilityresulting in the discharge of Pvt. E. should be regarded as having been incurredin line of duty. He was accepted for full military service and performed fullmilitary duty for more than three years. The disease which ultimately causedhis disability, if existing at the time of his enlistment, was latent. In theabsence of any showing of any misconduct on the part of the enlisted manduring the period of his service contributing to cause the disease, thedisability must be regarded as having been incurred in line of duty,particularly in view of the provisions of section 300 of the war risk insuranceact, as amended by the act of June 25, 1918 (Pub. 175, 65th Cong.), whichspecifically requires that, for the purposes of compensation under said act,an enlisted man shall be held and taken to have been in sound condition whenexamined, accepted, and enrolled for service.
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[Ninth indorsement]
ADJUTANT GENERAL'S OFFICE,
February 28, 1919.
To the ASSISTANT SECRETARY OF WAR:
Recommending approval of the opinion of the Judge AdvocateGeneral of the Army, as set forth in the eighth indorsement.
Steps to obtain a revision of the law in this respect weretaken by the War Department in the following letter:
AG 011.3
WAR DEPARTMENT,
Washington, April 15, 1920
The honorable the SECRETARY OF THETREASURY.
SIR: I desire to bring to your attention the desirability ofsecuring an amendment to the first proviso of section 300 of the war riskinsurance act (40 Stat. 398, 405), as amended by the act of June 25, 1918 (40Stat. 609, 611) and by the act of December 24, 1919 (Public No. 104, 66thCong.), which reads as follows:
Provided, That for the purpose of this section saidofficer, enlisted man, or other member shall be held and taken to have been insound condition when examined, accepted, and enrolled for service.
The effect of this proviso is to create a conclusivepresumption of soundness when men are accepted for service. Yet, as more fullyappears from extracts from a memorandum submitted by the Surgeon General andwhich are inclosed, it frequently happens that diseases or defects which areactually existent at the time of acceptance can not be detected by means of sucha medical examination as is possible at the time, but when later discovered canbe clearly shown to have existed prior to acceptance.
It may be that during the emergency, when men were draftedinto the service, such an attitude on the part of the Government toward them asis manifested in this proviso may havebeen justified, but, as appears from the extracts from the Surgeon General'sreport, to which reference has already been made, it has been the cause of theloss of millions of dollars to the Government, and the policy thus enunciatedshould not be continued now that voluntary enlistments have been resumed; also,the tendency will be to encourage the enlistment of men with latent diseases ordefects, 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 tocreating in favor of the men accepted for service that presumption of soundnesswhich naturally arises from the fact of acceptance, but this presumption,instead of being conclusive should be rebuttable, should be overcome by adetermination, carefully made and sustained by clear and convincing proof, thatthe disability was incurred prior to acceptance for service.
I am transmitting this letter to you and also to the Secretary of the Treasury becauseI feel that if those departments which are concernedwith this matter are in accord as to their views respecting it, remediallegislation 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 serviceand at the same time safeguard the interests of the Government.
A BILL To amend section 300 of the war risk insurance act, asamended 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 ofthe United States of America in Congress assembled, Thatthe first proviso of section 300 of the war risk insurance act, as amended bythe act of June 25, 1918, and by the act of December 24, 1919, be amended toread as follows: Provided, That for the purpose of this section saidofficer, enlisted man, or other member shall be presumed to have been in soundcondition when examined, accepted, and enrolled for service but that suchpresumption may be overcome when, under such regulations as may be prescribed bythe Secretary of War, the Secretary of the Navy, or the Secretary of theTreasury, depending on the service into which the officer, enlisted man, orother member has been accepted, it is shown by clear and convincing proof thatthe disability found to exist subsequent to acceptance for service neverthelessexisted prior to acceptance: Provided further, That if it be asshown that the disability existed prior to acceptance for
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service, but there is reason to believe that it has been aggravated by hisservice, then compensation shall be payable under the provisions of this actonly to the extent that the disability has been aggravated: And providedfurther, That no rights which have already accrued shall be affected by thisamendment.
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, October20, 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.
