ice and particular consideration will be accorded combat duty and other hardships of service. The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability. (38 U.S.C. 354)

(c) Peacetime service. The specific finding requirement that an increase in disability is due to the natural progress of the condition will be met when the available evidence of a nature generally acceptable as competent shows that the increase in severity of a disease or injury or acceleration in progress was that normally to be expected by reason of the inherent character of the condition, aside from any extraneous or contributing cause or influence peculiar to military service. Consideration will be given to the circumstances, conditions, and hardships of service.

[26 FR. 1580, Feb. 24, 1961]

§ 3.307

Presumptive service connection for chronic, tropical, or prisoner of war related disease; wartime and service on or after February 1, 1955.

(a) General. A chronic, tropical, or prisoner of war related disease listed in § 3.309 will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in § 3.309 (a) will be considered chronic.

(1) Service. The veteran must have served 90 days or more during a war period or after January 31, 1955. The requirement of 90 days' service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond January 31, 1955, or began after that date. Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309 (c).

(2) Separation from service. For the purpose of subparagraphs (3), (4), and (5) of this paragraph, the date of separation from wartime service will be the date of discharge or release during a war period, or if service continued after the war, the end of the war period. In claims based on service on or after February 1, 1955, the date of separation will be the date of discharge or release from

the period of service on which the claim is based.

(3) Chronic disease. The disease must have become manifest to a degree of 10 percent or more within 1 year (for Hansen's disease (leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 years) from the date of separation from service as specified in subparagraph (2) of this paragraph.

(4) Tropical disease. The disease must have become manifest to a degree of 10 percent or more within 1 year from date of separation from service as specified in subparagraph (2) of this paragraph, or at a time when standard accepted treatises indicate that the incubation period commenced during such service. The resultant disorders or diseases originating because of therapy administered in connection with a tropical disease or as a preventative may also be service connected. (38 U.S.C. 312)

(5) Diseases specific as to prisoners of war. The disease must have become manifest to a degree of 10 percent or more at any time after service, except psychosis which must have become manifest to a degree of 10 percent within 2 years from the date of separation from service as specified in subparagraph (2) of this paragraph. (38 U.S.C. 312; Public Law 91-376, 84 Stat. 787)

(b) Evidentiary basis. The factual basis may be established by medical evidence, competent lay evidence or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period, not merely conclusions based upon opinion. The chronicity and continuity factors outlined in § 3.303 (b) will be considered. The diseases listed in § 3.309 (a) will be accepted as chronic, even though diagnosed as acute because of insidious inception and chronic development, except (1) where they result from intercurrent causes, for example, cerebral hemorrhage due to injury, or active nephritis or acute endocarditis due to intercurrent infection (with or without identification of the pathogenic micro-organism); or (2) where a disease is the result of drug ingestion or a complication of some other condition not related to service. Thus, leukemia will be accepted as a chronic disease whether diagnosed as acute or chronic. Unless the clinical picture is

clear otherwise, consideration will be given as to whether an acute condition is an exacerbation of a chronic disease. Where, for the purposes of § 3.309(c), the issue is presented as to whether a prisoner of war suffered from dietary deficiencies, forced labor, or inhumane treatment (in violation of the terms of the Geneva Conventions of July 27, 1929, and August 12, 1949), while held as a prisoner of war, it will be resolved on the basis of all evidence available including the statements of comrades and the veteran's own statement in certified form. (38 U.S.C. 312; Public Law 91-376, 84 Stat. 787)

(c) Prohibition of certain presumptions. No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period, except pulmonary tuberculosis under § 3.371. This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10 percent degree. The consideration of service incurrence provided for chronic diseases will not be interpreted to permit any presumption as to aggravation of a preservice disease or injury after discharge.

(d) Rebuttal of service incurrence. Evidence which may be considered in rebuttal of service incurrence of a disease listed in § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression, "affirmative evidence to the contrary"

will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. As to tropical diseases the fact that the veteran had no service in a locality having a high incidence of the disease may be considered as evidence to rebut the presumption, as may residence during the period in question in a region where the particular disease is endemic. The known incubation periods of tropical diseases should be used as a factor in rebuttal of presumptive service connection as showing inception before or after service. (38 U.S.C. 313)

[26 F.R. 1581, Feb. 24, 1961, as amended at 35 F.R. 18281, Dec. 1, 1970]

§ 3.308 Presumptive service connection; peacetime service before February 1, 1955.

(a) Chronic disease. There is no provision for presumptive service connection for chronic disease as distinguished from tropical diseases referred to in paragraph (b) of this section based on peacetime service before February 1, 1955.

(b) Tropical disease. In claims based on peacetime service before February 1, 1955, a veteran of 6 months or more service who contracts a tropical disease listed in § 3.309(b) or a resultant disorder or disease originating because of therapy administered in connection with a tropical disease or as a preventative will be considered to have incurred such disability in service when it is shown to exist to the degree of 10 percent or more within 1 year after separation from active service, or at a time when standard and accepted treatises indicate that the incubation period commenced during active service unless shown by clear and unmistakable evidence not to have been of service origin. The requirement of 6 months or more service means active, continuous service, during one or more enlistment periods (38 U.S.C. 333). [31 F.R. 4680, Mar. 19, 1966]

§ 3.309 Disease subject to presumptive

service connection.

(a) Chronic diseases. The following diseases may be considered for service connection although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limits under § 3.307

Tumors, malignant, or of the brain or spinal cord or peripheral nerves.

Ulcers, peptic (gastric or duodenal). (A proper diagnosis of gastric or duodenal ulcer (peptic ulcer) is to be considered established if it represents a medically sound interpretation of sufficient clinical findings warranting such diagnosis and provides an adequate basis for a differential diagnosis from other conditions with like symptomatology; in short, where the preponderance of evidence indicates gastric or duodenal ulcer (peptic ulcer). Whenever possible, of course, laboratory findings should be used in corroboration of the clinical data.)

(b) Tropical diseases. The following diseases may be considered for service connection as a result of tropical service, although not otherwise established as incurred in service if manifested to a compensable degree within the applicable time limit under §§ 3.307 or 3.308 following service in a period of war or following peacetime service.

Amebiasis.

Blackwater fever.
Cholera.
Dracontiasis.

Dysentery
Filiariasis.

Leishmaniasis, including kala-azar.

Leprosy.

Loiasis.

Malaria.

Onchocerciasis.

Oroya fever.
Pinta.

Plague.

Schistosomiasis.

Yaws.

Yellow fever.

Resultant disorders or diseases originating because of therapy administered in connection with such diseases or as a preventative thereof.

(c) Diseases specific as to prisoners of war. The following diseases may be considered for service connection although not otherwise established as incurred in service if manifested to a compensable degree under the provisions of § 3.307(a) (5) and if the veteran, while held as a prisoner of war by an enemy government or its agents during World War II, the Korean conflict, or the Vietnam era, suffered from dietary deficiencies, forced labor, or inhumane treatment (in violation of the terms of the Geneva Conventions of July 27, 1929, and August 12, 1949). If he was held for not less than 6 months by the Imperial Japanese Government or the German Government during World War II, by the Government of North Korea during the Korean conflict, or by the Government of North Korea or the Government of North Vietnam or the Vietcong forces during the Vietnam era, or by their respective agents, he shall be deemed to have suffered from such dietary deficiencies, forced labor, and inhumane treatment.

Avitaminosis.

Beriberi (including beriberi heart disease).
Chronic dysentery.
Helminthiasis.

Malnutrition (including optic atrophy associated with malnutrition).

Pellagra.

Any other nutritional deficiency.
Psychosis.

[26 F.R. 1581, Feb. 24, 1961, as amended at 31 F.R. 4680, Mar. 19, 1966; 35 F.R. 18281. Dec. 1, 19701

§ 3.310 Proximate results, secondary

condition.

Disability which is proximately due to or the result of a service-connected disease or injury will be service connected. When service connection is thus established for a secondary condition, the 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 aircraft, submarine, unusual climatic conditions, etc.).

(3) In campaigns, expeditions, occupations and similar duty which is in

(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 death. 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.

service-con

(2) Generally, minor nected 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 vistal 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 § 3.102.

Service connection for mental unsound ness in suicide. See § 3.302.

§ 3.314 Basic pension determinations.

(a) Prior to the Mexican border period. While pensions are granted based on certain service prior to the Mexican border period, 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) Mexican border period and later war periods. Non-service-connected disability and death pension may be paid based on service in the Mexican border period, 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:

(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 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