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 §§ 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.*t (Sec. 1, 48 Stat. 8; 38 U.S.C. 701) 2.1067 "Actual combat" as used in § 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 (j). 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.*t (Sec. 4, 48 Stat. 9; 38 U.S.C. 704) 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 Page 34 **For statutory and source citations, see note to § 2.1000. 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, 73d 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 § 4.2043. For forfeitures, see §§ 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.*t (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. Page 35 after April 21, 1898.** (Secs. 1, 2, 49 Stat. 869; 38 U.S.C., Sup., 704a, 724) CROSS REFERENCE: For service connection and evaluation, veterans' claims, central office section, see §§ 4.2050-4.2073. 2.1078 Presumption of soundness under Public, No. 2, 73d Congress. (a) Under § 35.011 (a) (2), and § 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.*t (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 § 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 Page 36 **For statutory and source citations, see note to § 2.1000. condition during active service as required by § 35.011 (a) (4).*† (Sec. 1, 48 Stat. 8; 38 U.S.C. 701) 2.1086 Chronic diseases under Public, No. 2, 73d Congress. The service connection of chronic diseases under § 35.011, pursuant to Public, No. 2, 73d Congress, is restricted to the following: Anemia, primary Arteriosclerosis Arthritis Cardiovascular-renal disease, including hypertension (This term applies to combination involvements of the type of arteriosclerosis, nephritis and organic heart disease, and since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the 1 year period will be given the same benefit of service connection as any of the chronic diseases listed). Diabetes mellitus Encephalitis lethargica residuals Endocarditis (This term is intended to cover all forms of valvular heart disease). Endocarinopathies Epilepsies Hodgkin's disease Leukemia Nephritis (Nephrolithiasis is not a chronic disease within the meaning of § 35.011 but with a properly diagnosed nephritis, shown within 1 year from the date of discharge from service or the date prior to which a disability must have been incurred as provided in § 35.011 (a) (1), whichever is the earlier, a coexisting or subsequently developing nephrolithiasis may be considered as a part of the same condition). Organic diseases of the nervous system (This term is intended to include the same disabilities as those listed on pages 34 and 35 of the Schedule for Rating Disabilities, 1933, under organic diseases of the central nervous system and residuals thereof.) Psychoses Tuberculosis, active Tumors, malignant, or of the brain Osteitis deformans (Paget's Disease) No conditions other than those listed above will be considered chronic diseases except upon approval by the Administrator of Veterans' Affairs. For the purposes of determining the existence of a 10 percent degree of active tuberculosis within 1 year of discharge, or the date prior to which a disability must have been incurred as provided in § 35.011 (a) (1), whichever is the earlier, active pulmonary tuberculosis diagnosticated by approved methods during the second 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.*t (Sec. 1, 48 Stat. 8; 38 U.S.Ć. 701) 2.1087 Service connection for chronic constitutional diseases under Public, No. 141, 73d Congress. A chronic constitutional disease becoming manifest to a degree of 10 percent or more within 1 year from the date of separation from active service, upon the basis of medical or competent lay evidence, will be considered as having been incurred in active service. The medical evidence should set forth the physical findings and symptomatology elicited by examination within the 1 year period; and the lay evidence, which should **For statutory and source citations, see note to § 2.1000. Page 37 not merely contain conclusions based upon opinion, should describe the material and relevant facts as to the veteran's disability observed during such period. Where there is affirmative evidence to show that the chronic constitutional disorder is due to an intercurrent disease or injury suffered between the date of separation from active service and the onset of the chronic constitutional disorder, service connection under this section will not be accorded.* (Sec. 11, 46 Stat. 995, sec. 27, 48 Stat. 524; 38 U.S.C. 471, 471a) 2.1088 Chronic constitutional diseases under Public, No. 141, 73d Congress. The diseases listed on page 75, Schedule of Disability Ratings, 1925, and those included in Extension No. 6 to such schedule, as well as the conditions enumerated in the second proviso of section 200 of the World War Veterans' Act, 1924, as amended, are subject to the 1-year presumption of service connection provided for chronic constitutional diseases.*t (Sec. 11, 46 Stat. 995, sec. 27, 48 Stat. 524; 38 U.S.C. 471, 471a) CROSS REFERENCES: For application of rating schedule, see §§ 2.1141-2.1178. For schedule for rating disabilities, see § 35.03. 2.1089 Presumptive service connection for diseases listed in the second proviso, section 200, World War Veterans' Act 1924, as amended. The presumption of incurrence for the diseases listed in the second proviso, section 200, World War Veterans' Act, 1924, as amended, applies under Public, No. 141, 73d Congress except where clear and unmistakable evidence discloses that the disease, injury, or condition had inception before or after the period of active military or naval service. The presumption is not applicable in cases where the disability is due to the misconduct of the veteran.* (Sec. 11, 46 Stat. 995, sec. 27, 48 Stat. 524; 38 U.S.C. 471, 471a) SERVICE CONNECTION FOR NEUROPSYCHIATRIC DISEASES 2.1090 Presumptive service connection for neuropsychiatric diseases. Where it is shown (by reports of physical examination, or acceptable medical or lay affidavits) that disability from neuropsychiatric disease, spinal meningitis, paralysis agitans, or encephalitis lethargica existed to a 10 percent degree or more, in accordance with the Schedule of Disability Ratings, 1925, and extensions thereto, prior to January 1, 1925 and where evidence does not show clearly and unmistakably that such disability had its inception prior or subsequent to the period of active military or naval service, a rating will be made that the disability from neuropsychiatric disease, spinal meningitis, paralysis agitans, or encephalitis lethargica is presumed to have been incurred in military service in accordance with the terms of the second proviso of section 200 of the World War Veterans' Act, 1924, as amended, as reenacted by Public, No. 141, 73d Congress; Provided, That the veteran had active military or naval service between April 6, 1917 and November 11, 1918, inclusive, or prior to April 2, 1920, with the United States military forces in Russia. Rebuttal of the presumption will be in order where there is clear and convincing evidence that the disability arose from intercurrent trauma, organic disease not itself connected with service, or intercurrent infection Page 38 *For statutory and source citations, see note to § 2.1000. |