
    HUNTER LOUIS GIRAULT v. THE UNITED STATES
    [No. 50474.
    Decided November 8, 1955.
    Plaintiff’s motion for rehearing overruled January 31, 1956.
    Plaintiff’s motion for reconsideration under Rule 54 overruled June 5, 1956]
    
      
      Mr. Paul B. Harrml for plaintiff. Messrs. Geiger <$; Har-mel were on the briefs.
    
      Mr. LeBoy Bouthmayd, Jr., with, whom was Mr. Assistant Attorney Generad Warren E. Burger, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

In our opinion filed April 5,1955 in this case we held that two documents, called to the attention of the Secretary of War after he had held that plaintiff was entitled to receive retired pay because incapacitated for active service, which incapacity he had held was an incident of his military service — we held that these two documents constituted newly discovered evidence, which authorized the Secretary of War to reopen the case. We further held that his decision reversing his prior decision was not arbitrary, and, hence, was binding on us.

After plaintiff’s motion for a rehearing, we reexamined the question and have now concluded, first, that the alleged “newly discovered evidence” was not unavailable before the first decision of the Secretary of War and was not substantial enough to authorize him to reopen the case, within the rule laid down in the cases of Spencer v. United States, 121 C. Cls. 558, cert. den. 344 U. S. 828, and Carlin v. United States, 121 C. Cls. 643.

Secondly, we have concluded that, while the Secretary’s action in reversing his former decision was not arbitrary, in the sense that there was a wanton disregard of plaintiff’s rights, it was, nevertheless, so clearly erroneous, and so obviously contrary to law that we must hold it to have been arbitrary, in the sense that it was an abuse of discretion. In such case we have jurisdiction to set it aside and render that decision which the facts and the law require. Dismuke v. United States, 297 U. S. 167; Silberschein v. United States, 266 U. S. 221; Garfield v. United States, ex rel. Goldsby, 211 U. S. 249; Carlin v. United States, supra, and other cases therein cited.

Before discussing the alleged “newly discovered evidence,” we must state the facts in order that this evidence may be evaluated.

Plaintiff first enlisted in the United States Army in 1916. He was severely wounded in action during the first World War, contracted active tuberculosis, and resigned his commission as captain in 1925.

Because of his prior training and experience and his knowledge of the military science, the Army sent an emissary to him, when we entered World War II, to induce him to reenter the service. Plaintiff applied for a commission, but his physical examination showed that he suffered from chronic bronchitis, and for this reason he was rejected. Plaintiff was drawing compensation on account of this disability, but he executed a sworn statement waiving “all disability compensation from the United States Government for the period during which I hold a temporary commission in the Army of the United States.” He was thereupon accepted and reported for active duty as captain on March 21,1942.

After two years in the service, plaintiff was treated for arterial hypertension and retinitis, hypertensive type, and for arteriosclerosis. He was ordered before a Retiring Board.

This Board found that plaintiff was incapacitated for active duty because of arteriosclerosis and arterial hypertension, but found that these diseases were not an incident of plaintiff’s military service.

At plaintiff’s request, the Retiring Board was reconvened to consider additional evidence offered by plaintiff, but it adhered to its former findings. Plaintiff protested the findings. On review, the Surgeon General recommended the matter be returned to the Board for further consideration. This was done, but the Board again adhered to its former findings.

Then the Surgeon General, on review of the findings, made this recommendation to the Adjutant General:

In view of the evidence submitted in the record in that this officer’s arterial hypertension, moderate, was manifested in the service on or about March 1944, approximately two years subsequent to this officer’s entrance upon active duty and no evidence has been submitted to indicate clearly the existence of this condition prior to March 1944, it is the opinion of this office that this officer’s hypertension should be considered the result of an incident of service.

Following this, the Separations Board of the War Department recommended that that part of the findings of the Retiring Board which held that plaintiff’s incapacity was not an incident of the service be disapproved. The Secretary of War concurred, and held that the cause of plaintiff’s incapacity was an incident of the service.

The Adjutant General then certified plaintiff’s name to the Veterans’ Bureau for retirement pay in the amount of $215.62 monthly.

About two months later, the Veterans’ Administration forwarded to the Adjutant General a photostatic copy of a letter written that Bureau by plaintiff’s wife on December 9,1940, prior to the beginning of his second period of military service, and it also forwarded a statement made by plaintiff prior to his entry upon his second period of service at the time he underwent a physical examination by the Veterans’ Administration. There was also enclosed the Veterans’ Administration’s report of the physical examination that had been made of plaintiff by this Bureau on February 27,1941.

Upon the basis of this so-called newly discovered evidence, the Secretary of War reopened the case and again referred it to the Retiring Board.

As might be expected, the Retiring Board adhered to its three former decisions and held that plaintiff’s. incapacity was not an incident of the service. Plaintiff appealed to the Secretary of War.

On review, the Surgeon General made this statement in his recommendation to the Adjutant General, after having reviewed the so-called newly discovered evidence:

It is the carefully considered opinion of this office that this officer had his arteriosclerosis and hypertension for some time prior to February 1941, and that his continuous rest during 1940, alleviated his symptoms but had he admitted the true history when he was examined for appointment in January 1942, he would never have been qualified. It is further the opinion of this office that this officer’s incapacities were not permanently aggravated by the military service.

The Adjutant General thereupon advised plaintiff that his appeal to the Secretary of War from the findings of the Retiring Board had been denied, and the Adjutant General also notified the Veterans’ Administration that plaintiff was not entitled to retirement benefits.

We held in Spencer v. United States, supra, and Carlin v. United States, supra, that the findings of the Secretary of War on a man’s eligibility to retirement pay was final and could not be reopened, except in the case of fraud, substantial new evidence, mistake of law, or mathematical miscalculation.

The first question we must answer is whether or not the information furnished the Secretary of War by the Veterans’ Administration, after he had rendered his decision holding that plaintiff was entitled to retired pay, constituted substantial newly discovered evidence. We must hold that it did not.

In the first place, this evidence was readily available for consideration of the Retiring Board and the Secretary of War before he rendered his decision holding plaintiff to be entitled to retirement pay. The War Department knew that plaintiff had been drawing compensation from the Veterans’ Administration prior to his entry into the service, because the Army consented to issue plaintiff a commission only after plaintiff had executed a waiver of all compensation benefits which he had been receiving from the Veterans’ Administration, so long as he held a temporary commission in the Army. The Retiring Board and the Secretary of War, therefore, knew that plaintiff must have had a physical examination by the Veterans’ Administration. The exercise of less than ordinary diligence required the Retiring Board and the Secretary of War to call on the Veterans’ Administration for such information as it had prior to the rendition of its decision.

No court would set aside its judgment on the ground that such evidence was newly discovered. The rule applicable to a court should be applied to such a decision of the Secretary of War. Such evidence must have been produced before the initial decision of the Secretary of War, at the peril of the Government. Since it was so readily available, it cannot possibly be considered to have been newly discovered evidence. Newly discovered evidence is only such evidence as could not have been discovered by the exercise of due diligence prior to the rendition of the initial decision of the Secretary of War.

Nor do we think this so-called newly discovered evidence was “substantial” newly discovered evidence. Bear in mind that the question before the Secretary of War was whether or not plaintiff’s arteriosclerosis and arterial hypertension were an incident of the service. If he had had these diseases prior to his entry into the service, they could not have been said to be an incident of his service unless aggravated by his service. So, the question is whether or not he had these diseases before he entered the service.

The letter from plaintiff’s wife to the Veterans’ Administration sheds absolutely no light whatever on whether or not he had this condition before he entered the service. This merely shows that plaintiff never did regain his strength after he had been gassed during the First World War; that after only moderate exertion he showed unusual fatigue; that he complained of being unable to get enough breath, and that he had to give up his business. This condition could have been caused as easily by his having been gassed as by arteriosclerosis and arterial hypertension. During plaintiff’s service he was treated for active tuberculosis. Tuberculosis of course could have caused the condition described by plaintiff’s wife.

Plaintiff’s statement to the Medical Bureau shows that he got tired too easily, and was subject to occipital headaches; and would often run a little fever; that when he bent over he would get dizzy; that if he walked fast he would feel like he was not getting enough air; that he took cold easily; and that he had continually lost weight over a period of two or three years. The condition plaintiff himself described could of course be due either to tuberculosis or to his having been gassed, equally as well as to arteriosclerosis and arterial hypertension.

The special heart examination made by the Veterans’ Administration said nothing about arteriosclerosis and arterial hypertension. Under the heading of “Diagnosis” this report stated: “Functional class One — Code 418490 — Sinus arrhythmia, slight myocardial changes.” It will be noted nothing was said about arteriosclerosis and arterial hypertension.

The other examinations quoted in finding 26 say nothing of arteriosclerosis and arterial hypertension.

Plaintiff was not drawing compensation from the Veterans’ Administration for arteriosclerosis or arterial hypertension, but for chronic bronchitis.

Even if this evidence could be considered as newly discovered evidence, we have no hesitation in saying that it was not substantial enough to warrant reopening the case.

Lastly, we are compelled to hold that the second decision of the Secretary of War, holding that plaintiff’s incapacity was not an incident of the service, was so clearly erroneous and so obviously contrary to law, that we must hold it to have been arbitrary, in the sense that it completely disregarded the regulations of the War Department, to which we shall later refer, and gave weight to evidence so out of proportion to its real probative value as to force us to conclude that there was not a reasonable exercise of discretion on the part of the Secretary of War when he reversed his prior holding.

Army Eegulations 40-1025, paragraph 63 (12 Dec. 1944), quoted in part in finding 42, provides that a disease or injury contracted or sustained while in the active military service “will be presumed to have been incurred in line of duty, unless there is substantial evidence to show that such disease or injury — * * *”

(4) Existed prior to the individual’s current active service and was not aggravated by the service (g below).
c. General inference. — Lacking .evidence to the contrary, a disease or injury of a militarized person will be presumed to have been service-connected, and, therefore, in line of duty. * * *
g. Existed prior to individual’s current active service and was not aggravated by service (EPTS).
% % $ J§t
(2) Basic provision. — Irrespective of length of service, an Army patient will be presumed to have been in sound condition upon entering active service, unless the disease or injury, or the conditions which brought about the disease, injury, or death, were noted on the patient’s physical examination upon entrance into the service, or unless clear and unmistakable evidence ((3) below) demonstrates that the injury or disease, or the conditions which caused the disease, injury, or death, though not noted, existed prior to the patient’s active service.
* ' * * * *
(3) Clear and unmistakable evidence. — Medical judgment alone, as distinguished from well-established medical principles, will not be considered sufficient to rebut the presumption of the patient’s sound condition at the time of his entrance into active military service. * * *

In addition, Army Eegulations 605-250, dated March 28, 1944, paragraph 30-c (a), quoted in finding 43, provides:

Before a retiring board should find that the disability which renders an officer incapable of performing the duties of his office are not caused by an incident of the service, such fact shall be established beyond a reasonable doubt.

No one could possibly say that the three pieces of additional evidence considered by the Retiring Board and the Surgeon General and Secretary of War, after the case had been reopened, rebutted the presumption that plaintiff was not suffering from arteriosclerosis or arterial hypertension when he entered the service. These documents did not consist of that “clear and unmistakable evidence” to show that the disease existed prior to the patient’s active service. By no stretch of the imagination could it be said that the fact of his having had these diseases before he entered the service were by these documents “established beyond a reasonable doubt.”

The members of this court are not doctors, of course, but they are trained in evaluating even medical testimony. We could not possibly say that these three documents, even taken in conjunction with other testimony, established “clear and unmistakable evidence” that plaintiff had these diseases before he entered the service. Certainly we cannot say that this fact has been established beyond a reasonable doubt.

Hence, we cannot but conclude that the second finding of the Secretary of War was clearly contrary to the law, and in this sense must be held to have been arbitrary.

In our opinion, except for the bar of the statute of limitations, plaintiff would be entitled to recover, but the statute of limitations bars him.

Plaintiff’s suit was brought on December 18, 1951; therefore, if his right of action accrued prior to December 18, 1945, it is barred.

On May 2, 1945, the Adjutant General, following the decision of the Retiring Board on February 2,1945, and the Surgeon General’s recommendation of April 26,1945, notified plaintiff that his incapacity was not an incident of his service, and he also notified the Veterans’ Administration that plaintiff was not entitled to retirement pay.

We are of opinion that plaintiff’s right of action accrued at this time.

It is true that the Act of June 22,1944 (58 Stat. 284,287), as amended by the Act of December 28, 1945 (59 Stat. 623), gave a disabled officer who had been retired or released from active service, without pay, the right, at any time within 15 years from the date of retirement for disability, to request a review of the findings of the Retiring Board by the Review Board authorized by that Act; but the ofiieer was not required to request such a review before he could come into court.

The Act of September 26, 1941 (55 Stat. 738, 734), providing for retired pay for reserve officers, gave the Secretary of War the power to determine the eligibility of such officers to the benefits of the Act, “including all questions of law and fact relating to such eligibility.” The Secretary of War made this determination on April 26, 1945. The plaintiff could have immediately requested a review by the Disability Review Board; but if he thought the action of the Secretary of War was unlawful, because beyond Ms power or because arbitrary, he could have come directly to this court to have it set aside. It would be nonsensical to require a plaintiff making such an allegation to go before this Review Board before coming to court, since the decision of the Review Board, to have any binding effect, had to be approved by the same Secretary of War whose prior decision was alleged to have been arbitrary.

It is obvious that a review by the Disability Review Board was not required before the Secretary’s decision became final, since such a request for review might be made at any time within 15 years from the time the officer was retired. Certainly it was not intended that the statute of limitations on bringing suit should be suspended for so long a time.

All of these boards, the Retiring Board, the Disability Review Board, and the Board for Correction of Military Records act only in an advisory capacity to the Secretary of War. If his decision on the retirement rights of an officer is alleged to have been arbitrary, then the officer’s right to come to the court for redress accrues as soon as the arbitrary decision is rendered.

Indeed, the statutes did not contemplate court review at all; full and complete jurisdiction to determine an officer’s right to retire for disability was lodged in the Secretary of War, acting for the President. Resort to the court can only be had if the Secretary’s action is arbitrary or unlawful. As soon as it appears that the Secretary is acting in such a manner, the officer can appeal to the court for redress.

In John Cuiffo v. United States, No. 199-54, decided March 1, 1955, 131 C. Cls. 60, we held that where pursuit of an administrative remedy was not mandatory, but permissive only, the statute was not tolled while it was being pursued. We reaffirm that holding. Plaintiff’s later request for review by the Disability Eeview Board did not toll the statute. See also Mistretta v. United States, 128 C. Cls. 41, 45. Cf. Louis M. Rosnick v. United States, No. 193-54, decided April 5, 1955, 132 C. Cls. 1.

We must, therefore, hold that plaintiff’s claim is barred by the statute of limitations.

The former opinion and findings of fact are withdrawn, and this opinion and findings of fact are substituted therefor and will become the opinion and findings of fact of the court. Our former conclusion of law will stand.

Plaintiff’s motion for a rehearing is denied and his petition remains dismissed.

Lara mure, Judge; MaddeN, Judge; LittletoN, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Paul H. McMurray, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff was enlisted in the Regular Army of the United States on March 7, 1916, and was honorably discharged on June 7,1917, to accept a commission in the Officers Reserve Corps.

2. Plaintiff served on active duty as a Second Lieutenant, Infantry, National Army, from June 8, 1917, until August 24,1917. He was appointed Provisional Second Lieutenant, Infantry, Regular Army, and was on active duty from August 25,1917, until July 15,1925, when he resigned from the Regular Army.

3. After some months of hospitalization for active tuberculosis, the plaintiff requested on July 22, 1922, that he be ordered before an Army Ketiring Board. A board of medical officers found on July 25, 1922, that he was considerably underweight, and had a slight enlargement of the heart, but that he had no symptoms of a heart ailment or other disease, and was in good physical condition. The Surgeon General held that the condition of plaintiff did not warrant retirement and plaintiff’s request was denied. His resignation as a Provisional Captain, Infantry, Kegular Army, was accepted July 15, 1925. In 1940 the plaintiff was awarded a small monthly payment of disability compensation by the Veterans’ Administration on account of chronic bronchitis, which he waived when he reentered active duty in 1942.

4. Because of plaintiff’s experience and training, including his knowledge of military science and tactics, the Army in January 1942 sent an emissary to interview plaintiff personally and to induce him to reenter active duty in the Army. Plaintiff stated that he was in line for promotion in his employment by the United States Civil Service Commission and also that he felt he was not physically qualified, but on January 8, 1942, plaintiff submitted an application for appointment in the Army of the United States, stating he was available for immediate active duty.

5. Plaintiff received a physical examination at the LaGarde General Hospital, New Orleans, Louisiana, on January 9, 1942, and the report of his physical examination was reviewed on February 11, 1942, by the Surgeon General, who found that plaintiff was not physically qualified. On February 16,1942, plaintiff was notified by The Adjutant General that “* * * In view of the fact that you are drawing compensation from the United States Government for chronic bronchitis, your appointment as a commissioned officer is precluded. * * *”

6. Plaintiff, by telegram dated February 20,1942, requested The Adjutant General as follows: “* * * can my appointment as commissioned officer be completed by my waiving all rights and claims forever against the Government for compensation for chronic bronchitis my condition classed mild drawing minimum compensation fiftee [sic] percent * * On February 21,1942, plaintiff further advised The Adjutant General that bis compensation bad been discontinued effective that date and on February 25, 1942, plaintiff submitted a sworn statement waiving “all disability compensation from the United States Government for the period during which T hold a temporary commission in the Army of the United States.” The report of plaintiff’s physical examination dated January 9, 1942, was again referred to the Surgeon General of the Army, who recommended waiver of the history of chronic bronchitis and the Surgeon General’s recommendation was approved on February 26, 1942.

7. Plaintiff reported for active duty as a Captain, Corps of Military Police, Army of the United States, on March 21, 1942, and was promoted to the rank of Major effective December 9,1942.

8. Plaintiff received medical treatment from August 4 to August 7, 1943, for acute, catarrhal gastro-enteritis; December 9 to December 21, 1943, for acute, catarrhal nasopharyngitis; March 29 to April 14, 1944, essential, arterial hypertension and retinitis, hypertensive type; and April 14 to June 3, 1944, for chronic, generalized arteriosclerosis and chronic, arterial hypertension.

9. On May 1, 1944, plaintiff appeared before a Board of Medical Officers, convened at LaGarde General Hospital, New Orleans, Louisiana, who recommended that plaintiff be ordered before an Army Retiring Board.

10. Plaintiff appeared before an Army Retiring Board on May 26,1944, at LaGarde General Hospital. After considering the case, the Board made the following findings:

Major Hunter L. Girault, * * * is incapacitated for active service; that the said incapacity is not the result of an incident of service; that the cause of said incapacity is (1) Arteriosclerosis, generalized, chronic, moderate, cause undetermined; (2) Arterial hypertension, chronic, moderate, cause undetermined; that the cause of said incapacity is not an incident of service; that the said incapacity originated prior to entry upon active service; and that said incapacity is permanent. •

11. On May 30,1944, orders were issued relieving plaintiff from active duty, effective August 16, 1944, and on June 1, 1944, plaintiff requested that the Army Retiring Board be reconvened to permit him to present additional evidence.

12. The Army Retiring Board reconvened at LaGarde General Hospital on June 1, 1944, and after considering additional testimony of the plaintiff and medical witnesses, adhered to its former findings.

13. On June 5, 1944, plaintiff submitted a letter to The Adjutant General of the Army protesting the findings of the Army Retiring Board. On June 17, 1944, the Surgeon General’s Office recommended to The Adjutant General that the record be returned to the Board for further consideration of its findings. On July 3,1944, The Adjutant General’s Office returned the record to the Army Retiring Board and requested that the Board be reconvened for reconsideration of its findings in view of the remarks of the Surgeon General.

14. The Army Retiring Board reconvened at LaGarde General Hospital on August 1, 1944, with plaintiff present, after which it was stated that, the Board “having maturely reconsidered the case, adheres to its former findings.” Under date of August 16, 1944, plaintiff submitted a letter to The Adjutant General protesting this finding of the reconvened Army Retiring Board.

15. On August 18,1944, The Surgeon General’s Office advised The Adjutant General as follows:

1. This office does not concur in the findings of the Army retiring board convened at LaGarde General Hospital, New Orleans, Louisiana, 26 May 1944, and reconvened at the same hospital 1 June 1944 and 1 August 1944, in the case of Major Hunter Louis Girault, Q-440677-TC-AUS.
2. In view of the evidence submitted in the record in that this officer’s arterial hypertension, moderate, was manifested in the service on or about March 1944, approximately two years subsequent to this officer’s entrance upon active duty and no evidence has been submitted to indicate clearly the existence of this condition prior to March 1944, it is the opinion of this office that this officer’s hypertension should be considered the result of an incident of service.
3. It is recommended that Major Hunter Louis Gi-rault, 0-440677, TC-AUS, be considered incapacitated for active service; that the said incapacity (1) is not the result of an incident of service; that said incapacity (2) is the result of an incident of service; that the cause of said incapacity is: ((1) Arteriosclerosis, generalized, chronic, moderate, cause undetermined; (2) Arterial hypertension, chronic, moderate, cause undetermined) ; that the cause of said incapacity (1) is not an incident of service; that the cause of said incapacity (2) is an incident of service; that said incapacity (1) originated prior to entrance on active duty; that said incapacity (2) originated on or about March 1944; and that said in-capacities are permanent.
4. Physically unfit for limited service.

16. On August 31,1944, in a memorandum from the President of the Secretary of War’s Separations Board to The Adjutant General, the Secretary of War directed:

1. That the findings of the Army [Retiring Board in the case of subject officer be approved, except that portion thereof which states: “that the said incapacity is not the result of an incident of service” and “that the cause of said incapacity is not an incident of service; that the said incapacity originated prior to entry upon active service.” Which excepted portions thereof be disapproved.
2. And also determined that this officer’s incapacity was a result of an incident of service; that said incapacity originated some time after entry on active duty 21 March 1942, and became incapacitating on or about March 1944.
3. That this case be certified to the Administrator of Veterans’ Affairs, Washington, D. C., for retirement benefits under Section 5 of the Act of 3 April 1939 (Public Law No. 18 — 76th Congress).

17. Accordingly, the findings of the Army Retiring Board were approved by order of the Secretary of War, dated October 11,1944, except that portion which stated “that said incapacity is not the result of an incident of service” and “that the cause of said incapacity is not an incident of service” which was disapproved, it having been determined by administrative action that plaintiff’s incapacity was a result of an incident of service.

18. On October 12, 1944, The Adjutant General’s Office certified the name of plaintiff to the Administrator of Veterans’ Affairs, Washington, D. C., for retirement pay in the amount of $215.62 monthly, effective August 17,1944, under the provisions of Section 5 of the Act of April 3,1939 (Pub-lie Law 18, 76th Congress) and Executive Order No. 8099 of April 28,1939, as amended by Executive Order No. 8461 of June 28, 1940, and plaintiff was so notified of this certification.

19. On December 12, 1944, the Veterans’ Administration forwarded to The Adjutant General a photostatic copy of a statement by Mrs. J. B. Girault, dated December 9, 1940, and a copy of a report of physical examination, dated February 27, 1941, for information and any action deemed appropriate.

20. The Adjutant General referred the letter from Veterans’ Administration, with inclosures, to the Surgeon General, for information as to whether the additional data would have influenced the findings of the Army Betiring Board. The Surgeon General’s Office stated that, in view of the additional information, the record of the Army Betiring Board and the data submitted by the Veterans’ Administration should be forwarded to the Army Betiring Board for action.

21. On January 16, 1945, the proceedings of the Army Betiring Board, together with the information submitted by the Veterans’ Administration, were returned to the President of the Army Betiring Board, LaGarde General Hospital, for reconsideration of its findings in view of the information received from the Veterans’ Administration. On January 20, 1945, plaintiff was advised of this action and that he would be given an opportunity to be present at the reconvening of the Board, if he so desired.

22. Plaintiff advised the Army Betiring Board, under date of January 24, 1945, that he had been cautioned by his physician that it would be inadvisable for him to attend the reconvening of the Board because of his physical condition and therefore waived his right to appear in person, but enclosed a statement to be read to the Board and made a part of the record.

23. The Army Betiring Board reconvened at LaGarde General Hospital on January 26, 1945, and February 2, 1945, and considered the Beport of Physical Examination, made by the Veterans’ Administration Facility, New Orleans, Louisiana, dated February 27, 1941, and the signed sworn statement made by Mrs. J. B. Girault, wife of the plaintiff, to the U. S. Veterans Bureau, New Orleans, on December 9, 1940. The Board also considered a sworn statement of the plaintiff dated January 22,1945.

24. The sworn statement of plaintiff’s wife, which was forwarded to the Army by the Veterans’ Administration on December 12,1944, reads as follows:

New Orleans, La.
December 9th, 19Jfi.
U. S. VeteraNS Bureau,
New Orleans, La.
Deference: Hunter L. Girandt, File 0-7 Gentlemen :
I hereby submit the following statement regarding my knowledge of the disabilities of Captain Hunter L. Girault, which statement is in answer to your letter of 12-6-40:
I was notified by the War Department that Captain Girault has been severely wounded in action in October 1918. Later in December 19181 visited him several times in the hospitals at Camp Merritt, N. J., and also Ft. Logan H. Roots, Ark. I noticed the marked difference in his weight, he having lost about fifty (50) pounds since I had last seen him in July 1918, and he seemed to be suffering from a serious lung condition and was wearing dark, heavy glasses, due to the effects of gas in his eyes and lungs.
While stationed at Camp Pike, Ark., Captain Girault lived in my mother’s home in Little Rock, Ark., and during February 1921 he had a serious case of pneumonia. Later he was moved by ambulance to the Post Hospital at Camp Pike, Ark. I visited him almost daily during his stay at the hospital at Camp Pike and was told by the doctors and Captain Girault himself, that he was running a daily temperature.
During April 1921, Captain Girault was moved to the Fitzsimons Gen’l Hospital at Denver, Col., where he remained several months. I visited Denver, and called many times to see him while he was a patient there, and for a long time his condition seemed unchanged.
After leaving Fitzsimons Hospital, he never seemed to regain his strength, and showed unusual fatigue, following only moderate exertion. Owing to the insistence of his family and the advice of his family physician, he resigned his commission in the army. I do not recall the dates, but to my certain knowledge he was twice advised by our family physician to arrange his affairs, so that he might have regular rest periods, and in the early part of 1938 he disposed of his business.
Accepting a position in August 1939 he was forced to give up this work, because he did not feel physically able to fulfill the duties required. He would return from his work exhausted, and lie down immediately, until meal-time, seldom arising on Sundays until late afternoon, and he constantly complained of being unable to get enough breath.
Since the early part of this year (1940) he has done no work, and has spent practically his entire time at home in continuous rest, the members of his family contributing to his support. During the past few months, although his condition has shown improvement, he still complains of a shortness of breath, and brief spells of dizziness, especially upon arising from bed in the morning, or when leaning forward.
[s] Mrs. J. B. Gisaui.t.
Subscribed and sworn to before me, by Mrs. J. B. Girault this 9 day of December, 1940, at New Orleans, Louisiana, parish of Orleans.
[s] illegible.

25. In the Eeport of Physical Examination, made by the Veterans’ Administration Facility, New Orleans, on February 27, 1941, and forwarded to the Army by the Veterans’ Administration on December 12, 1944, under the heading “Origin and date of incurrence of disability as alleged by claimant” (Item 7) the following was recorded:

Heart condition — have had shortness of breath for past year anyway; subject to chest colds — had “flu” a couple of times during the winter for past three years.

Medical and industrial history as furnished by plaintiff was as follows (Item 8) :

Dr. French (deceased), Little Rock, Ark., treated me 4 or 5 years after discharge from Army in 1925. Treated me chiefly by rest measures. No medical treatment to speak of since 1930.
Occupation — No specific one. For ten years after discharge ran a trucking company in Little Rock. In 1938 sold business — average monthly income around $250.00 a month. In 1939 obtained work as life insurance salesman — salary $25.00 a week. Quit May 1940, because I couldn’t keep up work — was played out. At present temporarily employed at U. S. Government Warehouse helping in receiving department, monthly pay $100.00 a month.
I get tired out too easily. After several days working, get a headache (occipital) and will often have a little fever. This will last a couple of days. Have tried to change glasses but this doesn’t seem to make much difference. When I bend over, I get dizzy. If I walk real fast, I breathe fast but still don’t feel like I am getting enough air. One night following hot bath I had to sit up most of the night to get my breath. Have pains here and there in my chest. Chest colds hang on. Take cold easily. Gradual loss of weight over a period of two or three years. No history of G. I. complaints. I don’t smoke or use alcoholics to excess. Have had puffiness under eyes for past year. Seldom miss having nocturia — 1 to 3 times a night.

26. The Veterans’ Administration report of physical examination dated February 27,1941, referred to in the preceding finding, disclosed pulse rate, seated, 90; standing 96; immediately after exercise 116; and 3 minutes after exercise 98 — general appearance fair; nutrition good; muscular development fairly good, suborbital puffiness.

Under cardio-vascular system (Item 15) the following was reported by the medical examiner:

Special Heart Examination:
Large, well nourished white male. Moderate infra-orbital edema. States he has edema of lower legs often in the evenings, especially if he exerts much during the day.
Peripheral arteries easily palpable. Pulse good volume sustained; there are no dropt nor premature beats, but there are just perceptible changes in rate and rhythm. Apex beat strong. PMI 5th interspace within MCL. No definite thrills or shocks. Systolic sound at apex loud, valvular. Second sounds at base clear, good intensity. There is no definite cyanosis. There are venous capillary angiectasis of both lower legs. No definite dyspnoea following walking rapidly some 75 feet. Blood pressure, sitting 140/88; standing 134/90. Pulse, sitting 90; standing 96.
Diagnosis:
Functional class One — Code 418490 — Sinus arrhythmia, slight myocardial changes.

Other examinations, including eye, ear, nose and throat; special lung examination; and special neuropsychiatric ex-animation, were made, and the summary or recapitulation of all diagnoses (Item 31) is as follows:

1. Error of refraction.
2. Bronchitis, chronic.
3. Functional class One — Code 418490 — Sinus arrhythmia, slight myocardial changes.
4. Neuritis, greater occipital nerves — probably resulting from hypertrophic changes cervical spine.
5. Neurasthenia — vaso-motor instability a part of.
6. Chronic nephritis.

27. The medical testimony before the Army Ketiring Board, reconvened on January 26,1945, and February 2,1945, was to the effect that plaintiff “suffered from an inconstant hypertension prior to service and that his disability, number two, namely, the hypertension, is not service connected,” and that plaintiff had an early hypertension developing prior to his entry in the service and “there had been no permanent aggravation of this chronic progressive condition, and it was a natural course of the disease.”

28. The Army Retiring Board, reconvened at LaGarde General Hospital on January 26,1945, and February 2,1945, having maturely considered the additional testimony and the report from the Veterans’ Administration, found that plaintiff “is incapacitated for active service; that the said incapacity is not the result of an incident of service as a commissioned officer; that the cause of said incapacity is (1) Arteriosclerosis, generalized, chronic, moderate, cause undetermined; (2) Arterial hypertension, chronic, moderate, cause undetermined; that the cause of said incapacity is not an incident of the service as a commissioned officer; that the said incapacity originated prior to entry upon active service as a commissioned officer (approximate time — prior to 27 February 1941); that the said incapacity is permanent.”

29. The plaintiff requested that certain facts or statements set forth in a communication addressed to The Adjutant General on February 16,1945, be considered when the Army Retiring Board proceedings were reviewed. On February 17, 1945, the proceedings of the reconvened Army Retiring Board were carefully reviewed by the Surgeon General, who concurred in the findings of the Army Retiring Board. These findings were approved by order of the Secretary of War on February 27,1945, and plaintiff was so advised.

30. On April 14, 1945, plaintiff submitted a letter to The Adjutant General requesting reconsideration of the findings of the Army Betiring Board based upon the opinions of five medical experts.

31. The Surgeon General’s Office advised The Adjutant General, under date of April 26, 1945, as follows:

1. The War Department record including the basic communication, dated 14 April 1945, with inclosures, in the case of Major Hunter L. Girault, 0-440677, TC-ATJS, has been carefully reviewed in this office.
2. The photostats of the Veterans’ Administration records dated 27 February 1941, give the following history: In May 1940, this individual quit his job because he could not keep up work, was played out. He got tired too easily. After working several days he would get a headache (occipital) and would often have a little fever. When he bent over he got dizzy. If he walked fast he got dyspneic. Had pains here and there in his chest. Had had puffiness under eyes for a year and edema of lower legs often in the evenings when he had exerted himself much during the day. On examination his blood pressure was reported as 160/100, 186/90 and 170/96. His pulse response to exercise was not good showing at rate of 96 standing, 116 immediately after exercise and 98 three minutes after exercise. In Mrs. J. B. Girault’s notarized letter dated 9 December 1940, to the United States Veterans’ Bureau, it is stated that “Accepting a position in August 1939, he was forced to give up his work because he did not feel physically able to fulfill the duties required. He would return from his work exhausted and lie down immediately until meal time, seldom arising on Sundays until late afternoon and he constantly complained of being unable to get enough breath. Since the early part of this year (1940)_, he has done no work and has spent practically his entire time at home in continuous rest, the members of his family contributing to his support. During the past few months although his condition has shown improvement, he still complains of a shortness of breath and brief spells of dizziness especially upon arising from bed in the morning or when leaning forward.”
3. It is the carefully considered opinion of this office that this officer had his arteriosclerosis and hypertension for some time prior to February 1941, and that his ■continuous rest during 1940, alleviated Ms symptoms but had he admitted the true history when he was examined for appointment in January 1942, he would never have been qualified. It is further the opinion of this office that this officer’s incapacities were not permanently aggravated by the military service.
4. Recommend that this officer’s request for an appeal be denied and that the findings of the Army retiring board reconvened at the LaGarde General Hospital, 26 January 1945, be sustained.

82. On May 2, 1945, The Adjutant General advised the plaintiff that his request for appeal had been denied and it is “further the opinion of the War Department that your in-capacities were not permanently aggravated by your military service.” Plaintiff was advised of his right to request a further review under the provisions of Section 302, Public Law 346, 78th Congress, approved June 22, 1944.

33. The Adjutant General, under date of May 2,1945, notified the Veterans’ Administration that plaintiff was not entitled to retirement pay benefits under the provisions of the Act of April 3,1939.

34. On May 28,1945, plaintiff submitted an application for a review of the War Department Retiring Board Proceedings. The Secretary of War’s Disability Review Board convened at Washington, D. C. on August 8, 1945, to consider plaintiff’s application and, after a review of all the evidence submitted, affirmed the previous findings of the Army Retiring Board, and in addition, found “that any increase in symptoms while in the military service is not beyond the natural progress of the disease and does not constitute permanent aggravation.” The Secretary of War directed that the plaintiff and his counsel be advised that the previous findings of the Army Retiring Board were affirmed, which notification was forwarded to the plaintiff on August 23, 1945.

35. On October 20,1945, plaintiff submitted an application for a review of the findings of the Secretary of War’s Disability Review Board.

36. Plaintiff’s application was reviewed by a Board of Officers on November 2, 1945, and after careful consideration of the new evidence and contentions submitted by plaintiff in support of Ms application for a rehearing, it was recommended that the petition be denied, since the applicant had not presented “any new, pertinent or material evidence, which if previously considered could reasonably have been expected to cause a finding other than the decision rendered in this case on 8 August 1945.” The Secretary of War accordingly directed that plaintiff’s application for a review of the findings of the Secretary of War’s Disability Review Board be denied and plaintiff was so advised of the denial on November 19,1945.

37. Plaintiff, under date of November 12, 1945, requested a ruling from the Judge Advocate General’s Office as to whether in the absence of fraud, a certification of an officer of the Army of the United States to the Veterans’ Administration for retirement pay could be withdrawn after he had received such pay for nine months.

38. In response thereto plaintiff was advised on December 5, 1945, that the provisions of subparagraph 36b, Army Regulations 605-250, March 28, 1944, were applicable only to cases involving the retirement of officers of the Regular Army and that officers other than Regular Army Officers could, under certain circumstances, receive retirement pay under the Act of April 3, 1939 (53 Stat. 557), as amended (10 U. S. C., Supp. IV, 456), but they were not retired in the sense of the aforementioned Army regulations. The Judge Advocate General further stated that his office had previously expressed a view that retiring board proceedings, with respect to officers other than Regular Army officers who have previously been certified to the Veterans’ Administration for retirement pay, may be reopened under certain circumstances involving the production of newly discovered evidence and that “This was apparently the basis for reopening the retiring board proceedings in your case.”

39. On April 1, 1946, plaintiff submitted a letter to The Adjutant General requesting a rehearing on his case and on April 26, 1946, submitted an application for review of the findings of the Secretary of War’s Disability Review Board.

40. A Board of Officers was convened by the Army on June 17, 1946, and after carefully considering the additional evidence submitted in connection with plaintiff’s application for rehearing dated April 26, 1946, together with all evidence previously considered by the board at the review on August 8, 1945, found that the plaintiff “has not presented to the board new, pertinent or material evidence bearing upon his case which, if previously considered, could reasonably have been expected to cause a finding other than the decision rendered at the original hearing.” The Board concluded, therefore, that a formal rehearing was not justified under existing policies, and recommended that the same be denied.

41. Plaintiff was advised by The Adjutant General on June 27, 1946, that “by direction of the President, your request for a rehearing is denied.”

42. Army Begulations No. 40-1025, paragraph 63, (12 Dec. 1944), provides, in part:

ARMY REGULATIONS AR 40-1025 NO. 40-1025
WAR DEPARTMENT,
Washington 2S, D. O., 12 December 19^1.
Medical Department, Records and Reports op Sick and Wounded
‡ $ 4$ $
Section III
ENTRIES REQUIRED ÓN INDIVIDUAL MEDICAL RECORDS
* Ü¡ * *
63. Line op duty for disease or injury. — * * *
b. Basic.provision for determining line of duty. — A disease or injury that a militarized person contracts or sustains, while in the active military service of the United States, will be presumed to have been incurred in line of duty, unless there is substantial evidence to show that such disease or injury — * * *
(4) Existed prior to the individual’s current active service and was not aggravated by the service (g below).
c. General inference. — Lacking evidence to the contrary, a disease or injury of a militarized person will be presumed to have been service-connected, and, therefore, in line of duty. * * *
g. Existed prior to individual’s current active service and was not aggravated by service (EPTS).
(1) General. — If none of the factors mentioned above, from d through /, is involved, the line of duty will be determined on the basis of whether or not the disease or injury, or the conditions responsible for the disease, injury, or death, existed prior to active service, and, if such did exist prior to active service, whether or not they were aggravated by the active service. The following basic provision ((2) below) will be taken as the fundamental guide in establishing line of duty in such instances.
(2) Basic provision. — Irrespective of length of service, an Army patient will be presumed to have been in sound condition upon entering active service, unless the disease or injury, or the conditions which brought about the disease, injury, or death, were noted on the patient’s physical examination upon entrance into the service, or unless clear and unmistakable evidence ((3) below) demonstrates that the injury or disease, or the conditions which caused the disease, injury, or death, though not noted, existed prior to the patient’s active service. Further, even if the existence of the condition prior to entering active service has been established, only specific findings of “natural progress” of the disease or injury, based on well-established medical principles, are able to overcome the presumption of service-aggravated ((4) below). This provision will serve as a basis for judging line of duty in all cases, on or after 7 December 1941, and before the termination of hostilities incident to the present war. (It will be borne in mind that in determining line of duty with respect to eligibility for retirement benefits, the incapacity, whether resulting from a condition incident to service, or from a condition that existed prior to service but aggravated by the service beyond the “natural progress” of the condition, must be permanent; that is, the incapacity caused by the condition must be such that the removal of the disability within a reasonable time is highly improbable; see AR 605-250 and AR 615-395.)
(3) Clear and unmistakable evidence. — Medical judgment alone, as distinguished from well-established medical principles, will not be considered sufficient to rebut the presumption of the patient’s sound condition at the time of his entrance into active military service. * * *
(4) Service-aggravated. — Any increase in disability during active service resulting from a condition that ex-, isted prior to active service will be presumed to have been service-aggravated, unless it can be proved otherwise on the bases of well-established medical principles. * * *

43. Army Regulations No. 605-250, dated March 28,1944, Par. 30-c (a), provides:

Before a retiring board should find that the disability which renders an officer incapable of performing the duties of his office are not caused by an incident of the service, such fact shall be established beyond a reasonable doubt.

44. Plaintiff received officer’s retirement payments for the period from August 17, 1944, through May 31, 1945. On May 2, 1945, The Adjutant General notified the Veterans’ Administration that payments to plaintiff should be withheld, and as a result thereof plaintiff was notified by the Veterans’ Administration, under date of May 25, 1945, that his retirement pay had been discontinued from date of last payment. A set-off to recover the overpayment of retirement pay for the period February 28,1945, through May 31, 1945, has been effected by Veterans’ Administration.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes that as a matter of law the plaintiff is not entitled to recover and his petition is dismissed.  