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by existing regulations, will be given, if otherwise in order, the benefit of the provisions of g 35.011 (a) (3), if he had 90 days' continuous service.** (Sec. 1, 48 Stat. 8; 38 U.S.C. 701) CROSS REFERENCE: For service requirements, World War, see 88 2.1000_2.1002,

2.1060 Active service requirements of 35.013. Where the military service extended into, or beyond the period of hostilities, there must be 90 days' continuous service so extending in order to meet the requirements of $ 35.013, but the requirements of active service for a total of 90 days or more during one of the enumerated wars can be composed of two or more periods of service, if all such periods are within the war period.**

2.1061 Validity of enlistment a prerequisite to entitlement(a) In desertion at time of enlistment. A veteran in desertion who reenlisted and served honorably is not barred from pension, if otherwise entitled by reason of his honorable service, unless the reenlistment was affirmatively, voided by the service department.

(b) Misrepresentation of age. Title 10, U.S.C., in paragraphs 654 and 654a provides that a person who enlisted in the Army between April 6, 1917, and November 11, 1918, and was discharged for fraudulent enlistment on account of misrepresentation of age, shall be considered to have been honorably discharged. The same provisions are extended by 34 U.S.C. 204, to a person who enlisted in the Navy or Marine Corps between April 6, 1917, and November 11, 1918. Section 655, as amended by Public, No. 108, 75th Congress (50 Stat. 203; 10 U.S.C., Sup., 655), provides that a person who enlisted in the army between April 21, 1898, and July 4, 1902, both dates inclusive, and who was discharged for fraudulent enlistment on account of minority or misrepresentation of age shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom, if his service otherwise was such as would have entitled him to an honorable, discharge. If the discharge was for fraudulent enlistment on account of misrepresentation of age by the veteran's statement alone, benefits may be awarded from January 5, 1927, if otherwise entitled; but where the individual was discharged because of fraudulent enlistment on account of minority, benefits, if otherwise in order, are payable from May 25, 1937. The determination whether the veteran should be considered to have been honorably discharged under this section will be made by the War Department and such determination will be binding on the Veterans' Administration.*+ (Sec. 23, 43 Stat. 613, sec. 1, 50 Stat. 203; 38 U.S.C. 447, 10 U.S.C., Sup., 655)

2.1063 Sound condition at time of entrance into service under Public, No. 2, 73d Congress. Determinations involving the consideration of sound condition at time of entrance into service, for the purposes of $8 35.011 (a) (2), 35.012 (a) (2), will be based upon the evidence of record and such evidence as may be secured in any case where for any reason additional evidence may be considered to be necessary for the purpose of such determinations. Evidence of the existence of a condition at the time of or prior to entrance into service shall mean any evidence which is of record and which is of a nature usually accepted as competent to indicate the time of existence or inception of disease or injury. In the exercise of medical judg. ment for the purpose of such determinations, rating agencies shall take cognizance also of the time of inception or manifestation of diseases or injuries after the date of entrance into service, as disclosed by service records, and shall consider other entries or reports of proper military and naval authorities as they may relate to the existence of a condition at the time of or prior to enlistment or enrollment. Such records shall be accorded the weight to which they are entitled in consideration of other evidence and sound medical reasoning. The opinion of qualified physicians of the Veterans' Administration may be solicited whenever it is considered to be necessary or appropriate in any case.*+ (Sec. 1, 48 Stat, 8; 38 U.S.C. 701) Cross REFERENCE: For presumption of soundness, see $8 2.1078, 2.1079.

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**For statutory and source citations, see note to $ 2.1000. **For statutory and source citations, see note to $ 2.1000.

2.1064 Character of discharge under Public, No. 2, 73d Congress. To be entitled to compensation or pension under Public, No. 2, 73d Congress, the period of active service upon which claim is based must have been terminated by an honorable discharge. A “bad conduct discharge," an "undesirable discharge," separation “for the good of the service," an "ordinary discharge” (unless under honorable conditions) or other form of discharge not specifically an honorable discharge, or held by the Service Department to have been granted "under honorable conditions" will not meet the service requirements of Public, No. 2, 73d Congress, and all regulations issued thereunder. An officer who resigned from the service under honorable conditions will be considered as having been honorably discharged.*+ (Sec. 1, 48 Stat. 8; 38 U.S.C. 701)

2.1065 Misconduct. (a) A disabling condition will be considered to be the result of misconduct for the purpose of all adjudications under Public, No. 2, 73d Congress and all regulations issued thereunder, when it is shown to have been incurred under conditions or in a manner set forth by $ 35.10 (i), without regard to any prior determinations respecting the manner of its incurrence. Afinding in any case that a disabling condition is of misconduct nature, as defined by $ 35.10 (i), will bar any right to pension or compensation under Public, No. 2, 73d Congress and all regulations issued thereunder.

(b) (1) The words "willful misconduct" are used in section 27 of Public, No. 141, 73d Congress (48 Stat. 524; 38 U.S.C. 471a), and in all cases arising under this section of that law, the term “willful misconduct” as defined by precedents under the World War Veterans' Act, 1924, as amended, will be applied.

(2) For the purpose of adjudications under section 28, Public, No. 141, 73d Congress (48 Stat. 524; 38 U.S.C. 722), the definition established by precedents under section 200, World War Veterans Act, 1924 (43 Stat. 615; 38 U.S.C. 471), as amended, for willful misconduct will be applied, instead of the definition of misconduct set forth in $ 35.10 (i).

(3) For the purpose of adjudications under section 31, Public, No. 141, 73d Congress (48 Stat. 526; 38 U.S.C. 501a), the definition

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established by precedents under section 213, World War Veterans' Act, 1924 (43 Stat. 623; 38 U.S.C. 501), as amended, for misconduct will be applied.

(c) Gross negligence or gross carelessness, as referred to in $ 35.10 (i), is defined as the want of slight care.*t (Sec. 4, 48 Stat. 9; 38 U.S.C. 704)

2.1066 "Line of duty" under 88 35.011, 35.012. Sections 35.011, 35.012 require that a disabling condition for which pension or compensation is claimed, shall have been incurred in line of duty, except in cases where a right to pension or compensation is preserved by § 35.04. The records of Service Departments will be accepted in determining “line of duty” status of diseases and injuries unless considerations set forth in $ 35.10 (h) may warrant a different finding. Any evidence which is properly admissible or acceptable according to the practice of the Veterans Administration, and which is of a nature competent to demonstrate that the incurrence of disability was or was not in line of duty, according to conditions specified in $ 35.10 (h) may be used as a basis for adjudications, despite any official military or naval record with respect to manner of incurrence. The provisions of $35.10 (h) will be observed carefully in effecting all adjudications where a question of incurrence of disease or injury in line of duty is pertinent.** (Sec. 1, 48 Stat. 8; 38 U.S.C. 701)

2.1067 “Actual combat” as used in 8 35.012 (a) (3). A disability may be considered to have been acquired “in actual combat in a military expedition or military occupation” within the meaning of $ 35.012 (a) (3), when it was received in line of duty in connection with and incident to actual military service in carrying forward and accomplishing the object of a military expedition or occupation, and it must be incurred as a result of some military expedition in connection with the campaign, and designed to insure the successful conclusion thereof.*+ *(Sec. 1, 48 Stat. 8; 38 U.S.C. 701)

CROSS REFERENCE: For provisions relating to those receiving pension or officers' retirement pay for disabilities incurred in combat with an enemy, see $ 35.10 (1).

2.1068 Definition of "explosion of an instrumentality of war." This term, as used in the $ 35.10, signifies a sudden explosion or a violent bursting of an instrumentality of war, such as the explosion of a bomb, hand grenade, shrapnel, bullet, etc., and is not applicable to disabilities incurred as a result of crashes or collapses of instrumentalities of war.*+ (Sec. 4, 48 Stat, 9; 38 U.S.C. 104)

CROSS REFERENCE: For provisions relating to those receiving pension or officers' retirement pay for disabilities resulting from an explosion of an instrumentality of war in line of duty, see § 35.10 (J).

2.1069 Forfeiture-(a) Public, No. 2, 73d Congress. Section 15 of this Act (48 Stat. 11; 38 U.S.C. 715) provides for the forfeiture of pension or compensation to a person who knowingly makes false statements in connection with a claim.

(b) Prior forfeiture bars payments under Public, No. 2, 73d Congress, as amended. By reason of section 11, Public, No. 2, 73d

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**For statutory and source citations, see note to $ 2.1000.

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Congress (48 Stat. 10; 38 U.S.C. 711), a claimant whose rights were forfeited under section 504, World War Veterans' Act (43 Stat. 629; 38 U.S.C. 555), is not entitled to benefits under Public, No. 2, Congress, as amended.

(c) No forfeiture of pension for violation of hospital rules. Pension benefits, including those termed "compensation" by section 33, Public, No. 141, 73d Congress (48 Stat. 526; 38 U.S.C. 700), are not subject to deductions because of violations of hospital rules.*+

CROSS REFERENCES : For provisions relating to forfeiture under pension laws in force March 19, 1933, see g 4,2043. For forfeitures, see 88 5.2600-5.2606.

DISPOSITION OF ORIGINAL APPLICATION

2.1075 Preliminary action by authorization unit. Upon receipt of an original application for disability compensation or pension in the adjudication division, it will be referred to the authorization unit for review and development in accordance with established procedure. The authorization unit will determine whether there exists a statutory or regulatory bar to entitlement prior to the presentation of the case to the rating board. In making determinations as to line of duty or misconduct other than as to specific diseases and their sequelae, the responsible personnel of the authorization unit will be guided by the general policy of resolving all reasonable doubts in favor of the claimant.** (Sec. 1, 48 Stat. 8; 38 U.S.C. 701)

2.1076 Original examinations for disability compensation or pension. In original claims for disability pension or compensation, either for peacetime or wartime service, service connected or otherwise, an examination will not be authorized, unless and until evidence is of record, either from the service departments, or in the form of affidavits indicating the reasonable probability of a valid claim. If, after the development of the case, it is indicated that probability of a valid claim exists, an examination may be requested. Where the claimant appears in person and preliminary inquiry establishes the reasonable probability of a valid claim, an immediate physical examination may be requested.*+ (Sec. 1, 48 Stat. 8; 38 U.S.C. 701)

SERVICE CONNECTION

2.1077 Direct and presumptive service connection. Under Public, No. 2, and Public, No. 141, 73d Congress, the payment of disability compensation or pension is authorized in cases where it is established that disabilities are shown to have been directly incurred in or aggravated by active military or naval service within the dates prescribed under each Act and under Public, No. 344, 74th Congress, provided that such incurrence or aggravation is not the result of the misconduct of the veteran. Under Public, No. 141, 73d Congress, disability compensation is also authorized for disabilities presumptively service connected under the conditions hereinafter specified. Under Public, No. 2, 73d Congress, disability pension is payable for disabilities directly incurred in or aggravated in line of duty in active peacetime service during an enlistment on and

**For statutory and source citations, see note to $ 2.1000.

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after April 21, 1898.** (Secs. 1, 2, 49 Stat. 869; 38 U.S.C., Sup., 704a, 724)

CBOSS REFERENCE: For service connection and evaluation, veterans' claims, central office section, see 88 4.2050-4.2073.

2.1078 Presumption of soundness under Public, No. 2, 73d Congress. (a) Under $ 35.011 (a) (2), and 8 35.012 (a) (2), pursuant to Public, No. 2, 73d Congress, presumption of soundness at enlistment may be rebutted upon the basis of evidence or medical judgment sufficient to warrant a finding that the injury or disease existed prior to acceptance and enrollment.

(b) Evidence of the existence of a condition at the time of or prior to entrance into service.** (Sec. 1, 48 Stat. 8; 38 U.S.C. 701)

Cross REFERENCE: For sound condition at time of entrance into service under Public, No. 2, 73d Congress, see $ 2.1063.

2.1079 Presumption of soundness under Public, No. 141, 73d Congress. (a) The presumption of soundness at enlistment under section 200 of the World War Veterans' Act, 1924, as amended, as reenacted by Public, No. 141, 73d Congress, is for application except in cases where the evidence clearly and unmistakably discloses that the disease, injury, or disability had its inception before the period of active military or naval service.

(b) Where clear and unmistakable evidence shows that a disability had its inception before the period of active service, service connection on the ground of aggravation will be conceded in case there is any increase in the disability resulting from the disease or injury manifested on the record during active service.*+ (Sec. 11, 46 Stat. 995, sec. 27, 48 Stat. 524; 38 U.S.C. 471, 471a)

2.1080 Service connection for chronic diseases under Public, No. 2, 73d Congress. (a) Under $ 35.011 (a) (3), pursuant to Public, No. 2, 73d Congress, a chronic disease becoming manifest to a degree of 10 percent or more within 1 year from the date of separation from active war time service or within 1 year after the date prior to which a disability must have been incurred as provided in § 35.011 (a) (1), whichever is the earlier, will be considered as having been incurred in service when the conditions specified in § 35.011 (a) (3), are met.

(b) Evidence which may be considered a rebuttal of service incurrence of a chronic disease 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," appearing in § 35.011 (a) (3), 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 in question was not incurred in service within the meaning of g 35.011 (a) (1).

(c) The consideration of service incurrence provided for chronic diseases will not be interpreted to permit any presumption as to aggravation, but the fact of aggravation of disease or injury will be accepted only upon a showing of increase in disability from such

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**For statutory and source citations, see note to 8 2.1000.

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