secondary condition will be considered a part of the original condition.

[26 F.R. 1582, Feb. 24, 1961]

§ 3.311

Disability or death from armed conflict or extrahazardous duty in peacetime. (38 U.S.C. 336)

(a) Criteria governing service connection are those applicable to disabilities incurred or aggravated in service other than in time of war. Decisions under this section control rates of payment under § 3.4(d).

(b) "As a direct result of armed conflict" means any situation in which death, injury, or disease is incurred in line of duty and the primary, contributory, or proximate cause thereof results directly from the use of any instrumentality employed as a weapon in a war, expedition or occupation, battle, skirmish, raid, invasion, rebellion, insurrection, guerrilla action, etc. The concept relates to the actual use of firearms or other instrumentalities of war including submarine or aircraft by a belligerent nation or faction with which the United States is not at war, under circumstances endangering the lives or safety of members of our forces.

(c) "Extrahazardous service, including such service under conditions simulating war" means service which is more hazardous than normal peacetime service. It contemplates only service where the extra hazard is an inherent part of the military duty. It includes service:

(1) Under conditions simulating war (maneuvers, etc.).

(2) Recognized as involving risks beyond ordinary peacetime service (dangerous testing of weapons, duty on airunusual climatic submarine, craft.

conditions, etc.).

(3) In campaigns, expeditions, occupations and similar duty which is inherently more dangerous than usual peacetime duty.

[26 F.R. 1582, Feb. 24, 1961]

CROSS REFERENCE: Wartime rates under See § 3.4(d). special conditions.

§ 3.312

Cause of death.

(a) General. The death of a veteran will be considered as having been due to a service-connected disability when the evidence establishes that such disability was either the principal or a contributory cause of death. The issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made

of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports.

(b) Principal cause of death. The service-connected disability will be considered as the principal (primary) cause of death when such disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto.

(c) Contributory cause of death. (1) Contributory cause of death is inherently one not related to the principal cause. In determining whether the serviceconnected disability contributed to death, it must be shown that it contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of Ideath. It is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection.

(2) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In the same category there would be included service-connected disease or injuries of any evaluation (even though evaluated as 100 percent disabling) but of a quiescent or static nature involving muscular or skeletal functions and not materially affecting other vital body functions.

(3) Service-connected diseases or inJuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the serviceconnected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.

(4) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence

in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.

[26 F.R. 1582, Feb. 24, 1961]

CROSS REFERENCES: Reasonable doubt. See 48.102.

Service connection for mental unsoundness in suicide. See § 3.302.

$3.314 Basic pension determinations.

(a) Prior to World War I. While pensions are granted based on service prior to World War I, the only rating factors in claims therefor are:

(1) Claims based on service of less than 90 days in the Spanish-American War require a rating determination as to whether the veteran was discharged or released from service for a serviceconnected disability or had at the time of separation from service a serviceconnected disability, shown by official service records, which in medical judgment would have warranted a discharge for disability. Eligibility in such cases requires a finding that the disability was incurred in or aggravated by service in line of duty without benefit of presumptive provisions of law or Veterans Administration regulations (38 U.S.C. 512).

(2) Veterans entitled to pension on the basis of service in the Indian wars or the Spanish-American War may be entitled to an increased rate of pension if rated as being in need of regular aid and attendance. Veterans who have elected pension under Public Law 86-211 (73 Stat. 432) who are not rated as being in need of regular aid and attendance may be entitled to increased pension based on 100-percent permanent disability together with independent disability of 60 percent or more or by reason of being permanently housebound as provided in § 3.351(d) (38 U.S.C. 502 (b), (c), 511, 512).

(b) World War I and later wars. Nonservice-connected disability and death pension may be paid based on service in World War I, World War II, the Korean conflict, and the Vietnam era. Rating determinations in such claims will be required in the following situations:

time of separation from service a serviceconnected disability, shown by official service records, which in medical judgment would have warranted a discharge for disability. Eligibility in such cases requires a finding that the disability was incurred in or aggravated by service in line of duty without benefit of presumptive provisions of law or Veterans Administration regulations (38 U.S.C. 521 (g) (2)) unless, in the case of death pension, the veteran was, at the time of his death, receiving (or entitled to receive) compensation or retirement pay based upon a wartime service-connected disability (38 U.S.C. 541(a) and 542(a)).

(2) Determinations of permanent total disability for pension purposes will be based on service-connected or nonservice-connected disability not the result of willful misconduct or vicious habits. However, for pension under Public Law 86-211 (73 Stat. 432), permanent and total disability will be presumed where the veteran has attained age 65. (38 U.S.C. 502(a); Pub. Law 90-77)

(3) Veterans entitled to non-serviceconnected disability pension may be entitled to an increased rate of pension if rated as being in need of regular aid and attendance. Veterans entitled to protected pension or pension under Public Law 86-211 (73 Stat. 432) who are not rated as being in need of regular aid and attendance may be entitled to increased pension based on a 100 percent permanent disability together with independent disability of 60 percent or more or by reason of being permanently housebound as provided in § 3.351 (d) or (e). (38 U.S.C. 502 (b), (c), 521; Pub. Law 9077)

[31 F.R. 4680, Mar. 19, 1966, as amended at 32 F.R. 13224, Sept. 19, 1967]

§ 3.315 Basic eligibility determinations; dependents, loans, education.

(a) Husband. Eligibility of a husband of a female veteran to qualify as a “wife” for purposes of benefits under title 38, United States Code (except ch. 19), requires a rating determination that the husband is permanently incapable of self-support due to physical or mental disability (38 U.S.C. 102).

(b) Widower. Eligibility of a widower of a female veteran for benefits provided for a "widow" under title 38, United States Code (except ch. 19), requires a rating determination that the widower was permanently incapable of self-support due to physical or mental disability

(1) Claims based on service of less than 90 days may require a determination as to whether the veteran was discharged or released from service for a service-connected disability or had at the

at the time of the veteran's death (38 U.S.C. 102).

(c) Child over 18 years. A child of a veteran may be considered a "child" after age 18 for purposes of benefits under title 38, United States Code (except ch. 19 and sec. 5202(b) of ch. 85), if found by a rating determination to have become, prior to age 18, permanently incapable of self-support (38 U.S.C. 101(4) (B)).

(d) Loans. Where a World War II veteran or a Korean conflict veteran had less than 90 days service, or a veteran who served on or after February 1, 1955, had less than 181 days service on active duty as defined in §§ 36.4301 (hh) and 36.4501 (p) of this chapter, eligibility of the veteran for a home, farm, or business loan under 38 U.S.C. ch. 37 requires a determination that the veteran was discharged or released because of a service-connected disability or that the official service department records show that he had at the time of separation from service a service-connected disability which in medical judgment would have warranted a discharge for disability. These determinations are subject to the presumption to incurrence under § 3.304 (b). Determinations based on World War II, Korean conflict, and Vietnam era service are also subject to the presumption of aggravation under § 3.306(b) while determination based on service on or after February 1, 1955, and before August 5, 1964, are subject to the presumption of aggravation under § 3.306 (a) and (c). The provisions of this paragraph are also applicable, regardless of length of service, in determining eligibility to the maximum period of entitlement based on discharge or release for a service-connected disability. (38 U.S.C. 1802, 1818; Pub. Law 90-77)

(e) Veterans' educational assistance. Where a veteran who served on or after February 1, 1955, had less than 181 days service on active duty, as defined in § 21.1040 of this chapter, eligibility for educational assistance under 38 U.S.C. ch. 34 requires a determination that the veteran was discharged or released because of a service-connected disability or that the official service department records show that he had at the time of separation from service a service-connected disability which in medical judgment would have warranted a discharge for disability. These determinations are subject to the presumptions of incurrence under § 3.304 (b) and aggravation under § 3.306 (a) and (c), based on service rendered on or

after February 1, 1955, and before August 5, 1964, and under § 3.306(b) based on service rendered during the Vietnam era. (38 U.S.C. 1652(a); Pub. Law 90-77) [31 F.R. 4681, Mar. 19, 1966, as amended at 32 F.R. 13225, Sept. 19, 1967]

CROSS REFERENCES: Permanent and total disability ratings for pension purposes. See § 3.342.

Special monthly pension ratings. See § 3.351.

Determination of permanent need for regular aid and attendance and "permanently bedridden". See § 3.352.

Conditions which determine permanent incapacity for self-support. See § 3.356. § 3.321 General rating considerations.

(a) Use of rating schedule. The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation, disability and death pension, and in eligibility determinations. The provisions contained in the rating schedule will represent as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. (38 U.S.C. 355)

(b) Exceptional cases—(1) Compensation. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Administrator shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Chief Benefits Director or the Director, Compensation, Pension and Education Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.

(2) Pension. Where the evidence of record establishes that an applicant for pension who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating

schedule but is found to be unemployable by reason of his disability (s), age, occupational background and other related factors, the following are authorized to approve on an extra-schedular basis a permanent and total disability rating for pension purposes: The Chief Benefits Director or the Director, Compensation, Pension and Education Service, upon field station submission; the rating board, without field station submission, where regular schedular standards are met as of the date of rating decision; or the Adjudication Officer without field station submission, where the regular schedular standards are not met but the applicant has attained 55 years of age.

(3) Effective dates. The effective date of these extra-schedular evaluations granting or increasing benefits will be in accordance with the facts found but not earlier than the date of claim.

(c) Advisory opinion. Cases in which application of the schedule is not understood or the propriety of an extra-schedular rating is questionable may be submitted to Central Office for advisory opinion.

[26 FR. 1583, Feb. 24, 1963, as amended at 29 F.R. 1463, Jan. 29, 1964; 29 F.R. 7547, June 12, 1964]

CROSS REFERENCES: Effective dates; disability benefits. See § 3.400 (b).

Effective dates; increases. See § 3.400 (o).

§ 3.322 Rating of disabilities aggravated by service.

(a) Aggravation of preservice disability. In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. It is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, in terms of the rating schedule except that if the disability is total (100 percent) no deduction will be made. If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made.

(b) Aggravation of service-connected disability. Where a disease or injury incurred in peacetime service is ag

(a) Compensation—(1) Same type of service. When there are two or more service-connected compensable disabilities a combined evaluation will be made following the tables and rules prescribed in the 1945 Schedule for Rating Disabilities.

(2) Wartime and peacetime service. Evaluation of wartime and peacetime service-connected compensable disabilities will be combined to provide for the payment of wartime rates of compensation. (38 U.S.C. 357)

Nonservice-con

(b) Pension-(1) nected disabilities. Evaluation of two or more nonservice-connected disabilities not the result of the veteran's own will. ful misconduct or vicious habits will be combined as provided in paragraph (a) (1) of this section.

(2) Service-connected and nonservice-connected disabilities. Evaluations for wartime or peacetime service-connected disabilities may be combined with evaluations for disabilities not shown to be service connected and not the result of the veteran's own willful misconduct or vicious habits.

[26 F.R. 1583, Feb. 24, 1961]

CROSS REFERENCES: "Willful misconduct." See §3.1(n).

Pension. See § 3.3.

Line of duty and misconduct. See § 3.301. Service connection for mental unsoundness in suicide. See § 3.302.

§ 3.324 Multiple noncompensable service-connected disabilities.

Whenever a veteran is suffering from two or more separate permanent serviceconnected disabilities of such character as clearly to interfere with his normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rat

(b) Compensation cases-(1) Scheduling reexaminations. It is required that at least one Veterans Administration examination be made in every case in which compensation benefits awarded. When a case is initially rated on the records of the service department (§ 3.326), initial Veterans Administration examination will be scheduled in convalescent rating cases, in 6 months; otherwise, in 1 year.