(5) When the proximate cause of the injury suffered was the claimant's willful misconduct or failure to follow instructions, it will bar him from receipt of compensation under this section except in the case of incompetent claimants.

(6) Compensation for disability resulting from the pursuit of vocational rehabilitation is not payable unless there is established a direct (proximate) causal connection between the injury or aggravation of an existing injury and some essential activity or function which is within the scope of the vocational rehabilitation course, not necessarily limited to activities or functions specifically designated by the Veterans Administration in the individual case, since ordinarily it is not to be expected that each and every different function and act of a veteran pursuant to his course of training will be particularly specified in the outline of his course or training program. For example, a disability resulting from the use of an item of mechanical or other equipment is within the purview of the statute if training in its use is implicit within the prescribed program or course outlined or if its use is implicit in the performance of some task or operation the trainee must learn to perform, although such use may not be especially mentioned in the training program. In determining whether the element of direct or proximate causation is present, it remains necessary for a distinction to be made between an injury arising out of an act performed in pursuance of the course of training, that is, a required "learning activity", and one arising out of an activity which is incident to, related to, or coexistent with the pursuit of the program of training. For a case to fall within the statute there must have been sustained an injury which, but for the performance of a "learning activity" in the prescribed course of training, would not have been sustained. A meticulous examination into all the circumstances is required, including a consideration of the time and place of the incident producing the injury.

RATING CONSIDERATIONS RELATIVE TO
SPECIFIC DISEASES

§ 3.370 Pulmonary tuberculosis shown by X-ray in active service.

(a) Active disease. X-ray evidence alone may be adequate for grant of di

rect service connection for pulmonary tuberculosis. When under consideration, all available service department films and subsequent films will be secured and read by specialists at designated stations, who should have a current examination report and X-ray. Resulting interpretations of service films will be accorded the same consideration for service-connection purposes as if clinically established, however, a compensable rating will not be assigned prior to establishment of an active condition by approved methods.

(b) Inactive disease. Where the veteran was examined at time of entrance into active service but X-ray was not made or, if made, is not available and there was no notation or other evidence of active or inactive reinfection type pulmonary tuberculosis existing prior to such entrance, it will be assumed that the condition occurred during service and direct service connection will be in order for inactive pulmonary tuberculosis shown by X-ray evidence during service in the manner prescribed in paragraph (a) of this section, providing minimal lesions are first shown after at least 6 months active service, moderately advanced lesions after 9 months active service, or far advanced lesions after 12 months such service.

(c) Primary lesions. Healed primary type tuberculosis shown at the time of entrance into active service will not be taken as evidence to rebut direct or presumptive service connection for active reinfection type pulmonary tuberculosis. § 3.371 Criteria for presumptive wartime service connection for tuberculous disease.

(a) Pulmonary tuberculosis. (1) For the purpose of § 3.307, active pulmonary tuberculosis diagnosed by approved methods during the fourth year will be held to have preexisted the diagnosis 6 months in minimal (incipient) cases, 9 months in moderately advanced cases and 12 months in far advanced cases.

(2) Evidence of activity on comparative study of X-ray films showing the required degree of advancement within the presumptive period shown under subparagraph (1) of this paragraph will be taken as establishing service connection for active pulmonary tuberculosis subsequently diagnosed by approved methods but service connection and evaluation may be assigned only from the

date of such diagnosis or other evidence of clinical activity.

(3) A notation of inactive tuberculosis of the reinfection type at induction or enlistment definitely prevents the grant of service connection under § 3.307 for active tuberculosis, regardless of the fact that it was shown within the appropriate presumptive period.

(b) Pleurisy with effusion without obvious cause. Pleurisy with effusion with evidence of diagnostic studies ruling out obvious nontuberculous causes will qualify as active tuberculosis. The requirements for presumptive service connection will be the same as those for tuberculous pleurisy.

[Paragraph (b) amended, 27 F.R. 6387, July 6, 1962]

(c) Tuberculous pleurisy and endobronchial tuberculosis. Tuberculous pleurisy and endobronchial tuberculosis fall within the category of pulmonary tuberculosis for the purpose of service connection on a presumptive basis. Either will be held incurred in service when initially manifested within 36 months of the end of the claimant's wartime service. If diagnosed as active by approved methods during the fourth year, they will be held to have preexisted the diagnosis 6 months. As to tuberculous pleurisy, the effective date of the extension of presumption 6 months beyond the 3-year period will be September 5, 1958.

(d) Miliary tuberculosis. Service connection for miliary tuberculosis involving the lungs is to be determined in the same manner as for other active pulmonary tuberculosis.

§ 3.372 Initial grant following inactivity of tuberculosis.

When service connection is granted initially on an original or reopened claim for pulmonary or nonpulmonary tuberculosis and there is satisfactory evidence that the condition was active previously but is now inactive or arrested, it will be presumed that the disease continued to be active for 1 year after the last date of established activity, provided there is no evidence to establish activity or inactivity in the intervening period. The beginning date of graduated ratings will commence at the end of the 1-year period. This section is not applicable to running award cases.

§ 3.373

Association of certain diseases with tuberculosis.

(a) Bronchitis. A condition diagnosed as chronic bronchitis over an extended period of time with subjective symptoms, such as inability to carry on one's usual occupation, loss of time, and gradual loss of weight which is readily regained on rest, and developing, without substantial break in the continuity, into a condition identified as active pulmonary tuberculosis, may generally be considered to have been tuberculous from the beginning, unless unusual and expert means have been resorted to in the exclusion of tuberculosis.

Where pulmonary

(b) Pneumonia. tuberculosis occurs after acute pneumonia, it is reasonable to conclude that a tuberculous focus in the lungs existed before the development of pneumonia.

(c) Secondary pleurisy. The secondary pleurisies occurring in cases of intrathoracic neoplasms, cardiac and renal diseases have no essential relationship to pulmonary tuberculosis.

§ 3.374 Effect of diagnosis of active tuberculosis.

(a) Service diagnosis. Service department diagnosis of active pulmonary tuberculosis will be accepted unless a board of medical examiners or the Director of Clinic certifies, after considering all the evidence, including that favoring or opposing tuberculosis and activity, that such diagnosis was incorrect. Doubtful cases may be referred to the Chief Medical Director in Central Office.

(b) Veterans Administration diagnosis. Diagnosis of active pulmonary tuberculosis by the medical authorities of the Veterans Administration as the result of examination, observation, or treatment will be accepted for rating purposes. Reference to the Director of Clinic will be in order in questionable cases and, if necessary, to the Chief Medical Director in Central Office.

(c) Private physician's diagnosis. Diagnosis of active pulmonary tuberculosis by private physicians on the basis of their examination, observation or treatment will not be accepted to show the disease was initially manifested after discharge from active service unless confirmed by acceptable clinical, X-ray or laboratory studies, or by findings of active tuberculosis based upon acceptable hospital observation or treatment.

(d) Preexistence of tuberculosis. Active pulmonary tuberculosis diagnosed by

approved methods will be held to have preexisted the diagnosis 6 months in minimal (incipient) cases, 9 months in moderately advanced cases and 12 months in far advanced cases.

[Paragraph (d) added, 27 F.R. 6387, July 6, 1962]

§ 3.375

Determination of "complete arrest" (inactivity) in tuberculosis.

(a) Pulmonary tuberculosis. The requirement for application of the statutory ratings or of the statutory award is "complete arrest" of the disease. For these purposes a veteran determined to have had active pulmonary tuberculosis will be held to have reached a condition of complete arrest when the diagnosis is other than active; providing, that for a period of 6 months preceding the date of examination or hospital report there has been no evidence of local or constitutional symptoms, or of an unstable lesion or cavity, or of tubercle bacilli in the sputum or gastric contents (38 U.S.C. 356; 38 U.S.C. 314(q)). Following the determination of complete arrest under this criteria, the finding of tubercle bacilli in an occasional specimen of sputum or gastric contents will not of itself establish activity of the disease unless confirmed by a diagnosis of an active tuberculosis lesion.

(b) Nonpulmonary disease. Determination of complete arrest of nonpulmonary tuberculosis requires absence of evidence of activity for 6 months. If there are two or more foci of such tuberculosis, one of which is active, the statutory award for arrest will not be made until the tuberculous process has reached arrest in its entirety.

[Paragraph (b) amended, 27 F.R. 6387, July 6, 1962]

(c) Arrest following surgery. (1) Where there has been surgical excision of the lesion or organ, the date of complete arrest will be the date of discharge from the hospital, or 6 months from the date of excision, whichever is later.

(2) Following thoracoplasty performed in connection with the collapse therapy for a treatment of an active lesion as opposed to the situation where there has been surgical excision, the statutory ratings for inactive tuberculosis will not be applied until expiration of 1 year, notwithstanding a diagnosis of other than active tuberculosis within the year.

[Paragraph (c) added, 27 F.R. 6387, July 6, 1962]

87166 63- -7

§ 3.378 Changes from activity in pul

monary tuberculosis pension cases.

A permanent and total disability rating in effect during hospitalization will not be discontinued before hospital discharge on the basis of a change in classification from active. At hospital discharge, the permanent and total rating will be discontinued unless (a) the mediIcal evidence does not support a finding of complete arrest (§ 3.375) or (b) where complete arrest is shown but the medical authorities recommend that employment not be resumed or be resumed only for short hours (not more than 4 hours a day for a 5-day week). If either of the two aforementioned conditions is met, discontinuance will be deferred pending examination in 6 months. Although complete arrest may be established upon that examination, the permanent and total rating may be extended for a further period of 6 months provided the veteran's employment is limited to short hours as recommended by the medical authorities (not more than 4 hours a day for a 5-day week). Similar extensions may be granted under the same conditions at the end of 12 and 18 month periods. At the expiration of 24 months after hospitalization, the case will be submitted under § 3.321 if continued short hours of employment is recommended or if other evidence warrants submission. If the case is submitted under § 3.321 the permanent and total disability rating will be continued pending receipt of decision from Central Office.

§ 3.379 Anterior poliomyelitis.

If the first manifestations of acute anterior poliomyelitis present themselves in a veteran within 35 days of termination of active military service, it is probable that the infection occurred during service. If they first appear after this period, it is probable that the infection was incurred after service.

§ 3.380 Diseases of allergic etiology.

Diseases of allergic etiology, including bronchial asthma and urticaria, may not be disposed of routinely for compensation purposes as constitutional or developmental abnormalities. Service connection must be determined on the evidence as to existence prior to enlistment and, if so existent, a comparative study must be made of its severity at enlistment and subsequently. Increase

Page 93

in the degree of disability during service may not be disposed of routinely as natural progress nor as due to the inherent nature of the disease. Seasonal and other acute allergic manifestations subsiding on the absence of or removal of the allergen are generally to be regarded as acute diseases, healing without residuals. The determination as to service incurrence or aggravation must be on the whole evidentiary showing.

§ 3.381 Determination of service connection for dental disabilities.

(a) General. Service connection for dental conditions will not be considered as having been established when the evidence clearly shows that the disabilities existed or were recorded at the time of enlistment, subject to the provisions of paragraph (b) of this section or originated subsequent to discharge from causes not related to service. Each missing or defective tooth and each disease of the investing tissues will be considered separately, and service connection will be granted for disease or injury of individual teeth and of the investing tissues, shown by the evidence to have been incurred in or aggravated by service.

(b) Treatment in service. The furnishing of treatment or prosthesis for noncompensable dental conditions during service will not be considered per se as aggravation of a dental condition shown to have existed prior to entrance into active service. Teeth noted at entry into active service as carious restorable will not be held as service connected, either direct or by aggravation, notwithstanding enlargement of the original cavity or development of additional cavitation on the same or another surface; nor on the basis of the insertion of a filling during service, unless new caries develop after expiration of a reasonable time after the original cavity has been filled, amelioration rather than worsening or aggravation ensuing in such cases. Service connection by aggravation will be conceded in such teeth, carious restorable at entry into service, whether or not filled, but which necessitate extraction after the expiration of a reasonable time after entry into active service. A filling recorded at induction followed by a reasonable period of service and extraction or replacement because of new caries will entitle the veteran to a finding of direct service connection for the new condition. Likewise,

aggravation is allowed where pyorrhea is noted at enlistment but after reasonable service necessitates extraction of a tooth or teeth during service. Conversely, service connection by aggravation will not be conceded if the tooth at enlistment was classified as defective but was not restorable.

(c) Associated diseases. Effective principles relating to the establishment of service connection for dental diseases and injuries by reason of their relationship to other associated service-connected diseases or injuries will be observed in the adjudication of claims based upon dental conditions where a determination to that effect is properly in order.

(d) Presumption of soundness. The statutory presumptions as to soundness of condition at time of entrance into active service will not be applicable, in cases of dental conditions not disabling to a compensable degree.

(e) Combat, trauma, prisoner-of-war status. As to each noncompensable service-connected dental condition, a determination will be made as to whether it was due to combat wound or other service trauma. Where service connection is granted for noncompensable dental conditions, it will be determined whether the veteran involved was a prisoner of war, but not which of such conditions are attributable to the prisonerof-war experience. (38 U.S.C. 612(b) (3)).

§ 3.382 Evidence to establish service connection for dental disabilities.

(a) Requirements. Service connection for dental disabilities will be established by service records, documentary evidence in the form of reports of examinations (dental or physical), duly certified statements of dentists or physicians, or certified statements of fact from two or more disinterested parties. The disability must be shown to have been incurred in or aggravated by service as provided in this section. Statements certified by dentists or physicians must give the claimant's full name, the date he was first examined or treated, the date of subsequent treatments, if any, and contain a complete and detailed statement of the symptoms observed and diagnosis made. The name or number of all defective or missing teeth noted and the character and extent of any pathological condition of the investing tissues observed should be included. If

exact dates cannot be given, an approximate date may be used. Certified statements from disinterested parties must show the circumstances under which knowledge of the claimant's disability was obtained and as far as possible describe the symptoms and location of the disability observed.

(b) Exceptional case. Where after all sources of information have been exhausted and all variations in the records reconciled, there remains notation of filled teeth at time of release from active service and there was no notation of these teeth as defective or filled at entrance into service, service connection may be granted in exceptional cases for such teeth, notwithstanding there is no record of treatment during service, if the veteran alleges treatment in service, giving the time and place of treatment, and the conditions and circumstances of his service support his allegation, and inception in service is consistent with sound dental judgment. Exceptional cases contemplated in this category are where the veteran had a considerable period of service, particularly in a combat area where records of treatment may not always have been recorded due to the stress and strain encountered under battle conditions or where extenuating circumstances are shown in those instances where the veteran served in this country or in other than combat.

(c) Limitations. Salivary deposits is a type of routine dental condition which Malposed has no relation to service.

teeth with no pathology shown will not be service connected. Service connection should not be granted for the 3d molars at any time unless there is a definite record showing such teeth to have been diseased after a reasonable period of service. The 3d molars shown as present at induction and missing at discharge will not be granted service connection unless there is an actual record of extraction for reasons other than malposition or impaction. Vincent's disease should not be granted service connection if the service records are entirely negative. To warrant favorable action on Vincent's disease, chronicity, continuity of treatment, or the residual thereof, that is, periodontoclasia or pyorrhea, should be shown by the service records as chronic. Vincent's disease with infrequent episodes of short duration in the active service should be considered as an acute condition and may not be service connected. Gingivitis is not considered a disease entity and is not

ratable. Diagnosis of pyorrhea in service after a reasonable period of service will require confirmation by a Veterans Administration examination, including Xray, before grant of service connection, unless examination is contraindicated by factors such as extraction of all pyorrhectic teeth. Pyorrhea shown during service after a reasonable period of service, involving one or more teeth necessitating extraction, is a sufficient basis for grant of service connection for the tooth or teeth involved.

§ 3.383 Blindness or bilateral kidney involvement.

For periods on or after August 28, 1962, blindness in both eyes or bilateral kidney involvement will be considered service connected as provided in this section. Service connection for the bilateral disability will be assigned on the type of service (i.e., wartime or peacetime) on which service connection is established for the unilateral qualifying condition.

(a) Blindness. Where the veteran has suffered blindness in one eye as a result of service-connected disability and has suffered blindness in the other eye as a result of non-service-connected disability not the result of his own willful misconduct.

(b) Bilateral kidney involvement. Where the veteran has suffered the loss or loss of use of one kidney as a result of service-connected disability and has suffered severe involvement of the other kidney such as to cause total disability as a result of non-service-connected disability not the result of his own willful misconduct. (38 U.S.C. 360; Public Law 87-610)

[27 F.R. 12131, Dec. 7, 1962]

EFFECTIVE DATES

§ 3.400 General.

Except as otherwise provided, the effective date of an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. The effective date of an evaluation and award of pension or compensation for a veteran will be the date of receipt of the claim or the date entitlement arose, whichever is later. (38 U.S.C. 3010(a); Pub. Law 87-825)

(a) Unless specifically provided. On basis of facts found.