Page images
PDF
EPUB

military service between the specified dates or had its inception in and therefore is directly attributable to disease incurred in the line of duty in the military service within the dates specified, provided, however, that the statutory award will not be granted when the antecedent disease is service connected by statutory presumption.

(c) The statutory award will be granted for loss or loss of use of a creative organ resulting from gunshot wounds or other accidental trauma sustained in service or resulting from operations performed in service for the relief of other conditions, the creative organ becoming incidentally involved. In this regard, however, undescended testicles removed by operation will be considered as devoid of spermatogenesis unless laboratory examinations at the time of the orchidectomy determined the presence of viable spermatozoa.

(d) Loss or loss of use traceable to an operation performed subsequent to service, if the operation is one of election, will not entitle to the statutory award. If, however, the operation after discharge was required for the correction of a specific injury caused by a preceding operation in service and resulted in the loss or loss of use of a creative organ the statutory award may be granted.

(e) Atrophy resulting from mumps followed by orchitis in service is service connected. Mumps, however, not complicated by orchitis will not suffice as the antecedent cause of subsequent atrophy.

(f) Cases wherein there is uncertainty as to whether the veteran is entitled to the statutory award for the loss or loss of use of a creative organ, and all cases of women veterans where this question is involved, will be submitted to the veterans' claims service, central office for determination.*+ (Sec. 9, 26, 48 Stat. 10, 524, sec. 13, 46 Stat. 998; 38 U.S.C. 473, 473a, 479, 709)

2.1132 Payment of statutory award of $50 per month for arrested tuberculosis. Under the third paragraph of section 202 (7), World War Veterans' Act, 1924, as amended July 2, 1926, as reenacted by Public, No. 141, 73d Congress, any veteran having had a service connected active tuberculosis disease of compensable degree, which has reached a condition of complete arrest, whose aggregate disabilities including that resulting from tuberculosis, evaluated in percentage terms in accordance with the Schedule of Disability Ratings, 1925, and extensions thereto, entitle him to a monthly award of compensation of less than $50, including any additional compensation on account of dependents, shall be entitled to a statutory award of not less than $50 per month as compensation in full for all disabilities including that resulting from tuberculosis. This statutory award shall be payable from March 28, 1934, or the date the tuberculosis reached complete arrest, following activity, whichever is the later date except as provided in $ 3.1341. However, for any period during which the veteran's disabilities including that resulting from the tuberculous disease, evaluated in accordance with the Schedule of Disability Ratings, 1925, and extensions thereto, entitled him to an aggregate award, including any allowance for dependents, of $50 or more per month, the provisions of this section regarding the statutory award for arrested tuberculosis will be met by awarding the veteran the amount determined in accordance with the schedule and

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

Page 47

extensions thereto.*+ (Sec. 9, 44 Stat. 794, sec. 27, 48 Stat. 524; 38 U.S.C. 471a, 480)

2.1135 Determination of arrest in pulmonary tuberculosis. Determination of complete arrest of tuberculosis will be in accordance with § 25.6025.*+

2.1136 Rating of arrest in non-pulmonary tuberculosis. Disabilities in different body parts or organs resulting from arrested tuberculosis will be separately evaluted and combined for rating purposes in accordance with the Schedule of Disability Ratings, 1925, and extensions thereto. The rating of disability from nonpulmonary forms of arrested tuberculosis will be in accordance with the terms of the Schedule of Disability Ratings, 1925, and extensions thereto, as applied to resulting ankylosis, limitations of motion of joints, degree of fixation or angulation of the vertebral column, etc. Where, by surgical intervention, it has been possible completely to extirpate a tuberculous focus, as in nephrectomy, adenectomy, orchidectomy, amputation of a part, etc., leaving no other tuberculous focus, the rating and statutory award of not less than $50 per month for arrested tuberculosis will be applicable in accordance with the foregoing, subject to the provisions of g 3.1225.**

2.1137 Rating of reactivation in cases of arrested tuberculosis. In rating tuberculous disabilities to which the statutory award is not applicable, as when the diagnosis for the period of the disability upon which the rating is based is expressed in terms of activity, quiescence, or apparent arrest, the rating of the disability for such period shall be made in accordance with the Schedule of Disability Ratings, 1925, and extensions thereto and/or the Schedule for Rating Disabilities, 1933. If a period of complete arrest is interrupted by activity, the payment for arrested tuberculosis will cover only the period of arrest and will be terminated as of the date of determined reactivation, from which a rating will be made consistent with the physical findings pending reattainment of complete arrest.**

APPLICATION OF RATING SCHEDULE

2.1141 Use of 1925 and 1933 schedules. (a) Disability ratings will conform to the 1925 schedule in effect March 19, 1933, known as the Schedule of Disability Ratings, 1925, and extensions thereto, continued under section 28, Public, No. 141, 73d Congress (48 Stat. 524 ; 38 U.S.C. 722), and/or the current edition of the 1933 schedule authorized by $ 35.03, pursuant to Public, No. 2, 73d Congress, known as the Schedule for Rating Disabilities, 1933, according to the facts in each case.

(5) The 1933 schedule applies to disabilities for which service connection is granted or continued under $$ 35.011, 35.012, including wartime and peacetime service connections, or entitled to consideration under $ 35.013 and to disabilities considered as service connected under section 31, Public, No. 141, 73d Congress (48 Stat. 524; 38 U.S.C. 722).

(c) The 1925 schedule applies to those disabilities for which service connection is granted or continued as direct or presumptive under sections 27 and 28, Public, No. 141, 73d Congress, as amended by Public, No. 344, 74th Congress, and to disabilities service connected under section 31, under the latter section provided there was World War service. For periods on or after March 28, 1934, claims filed on or after March 20, 1933, by veterans who served in the active military or naval service between April 6, 1917, and November 12, 1918, (or prior to April 2, 1920, with the United States military forces in Russia), for service connected diseases or injuries, will be rated under both schedules.

Page 48

**For statutory and source citations, see note to $ 2.1000. *For statutory citation, see note to $ 2.1141.

(d) When one and not the other of the two schedules applies, only the rating of the applicable rating schedule will be cited. When both apply, concurrent ratings are required under both schedules, with separate evaluations under a single diagnosis and rating code.*

*88 2.1141 to 2.1178, inclusive, issued under the authority contained in R.S. 471, sec. 5, 43 Stat. 608, secs. 1, 2, 46 Stat. 1016, sec. 7, 48 Stat. 9; 38 U.S.C. 2, 11, 11a, 426, 707: interpret secs. 202, 8, 9, 43 Stat. 618, 1306, 1307, sec. 3, 48 Stat. 9; 38 U.S.C. 473-480, 482-491, 703.

CROSS REFERENCE: For presumption of service connection for chronic constitutional diseases, listed in the Schedule of Disability Ratings, see $ 2.1088.

2.1142 Special action where evaluations provided under rating schedules are considered inadequate or excessive. Exceptional cases to which the application of either schedule is not understood, or with regard to which the 1933 schedule is considered inadequate or excessive, may be submitted for advisory opinion or for revaluation to the director, veterans' claims service, central office. Severe disabilities considered total, but for which current procedure does not authorize a total rating, questionable special monthly pension cases, and double total and permanent disability cases, will be similarly submitted. The submission will include the case file, a recent medical examination, and definite recommendation from the submitting agency concerning service connection and evaluation of every disability, under both the applicable schedules as interpreted by the submitting agency, and concerning schedular changes deemed advisable by reason of the particular situation encountered.**

2.1143 Protected ratings, 1925 schedule. Evaluations under the 1925 schedule, including the percentage rating, the occupational determination and variant thereunder, and the occupational analogy, are to be continued without reduction in the absence of clear and unmistakable error, or as regards percentage ratings, in the absence of subsequent medical examinations adequately covering the specified disabilities and showing a material change in the physical condition. When the record shows that an extension to the 1925 schedule has not been applied, the rating will be brought under the extensions, but a reduction will not be effected in the absence of an examination fully adequate for the purpose of the extension. Differences of opinion as to classification between adjacent severity grades, or as to the rating applicable within a prescribed flexible range, or as to the analysis of disabilities into several factors, the ratings for which have been in the past combined, or mere differences in description or diagnosis of substantially the same degree of disability, will not

Page 49 Page 50

[ocr errors]

warrant correction of the evaluation on the ground of clear and unmistakable error unless the rating exceeds a prescribed limit, or is grossly disproportionate to the degree of disability sustained.*+

2.1144 Determination of permanence. (a) The application of the 1925 schedule requires a determination of the permanent or temporary character of each separate disability; however, in the general application of the 1925 schedule permanent ratings will be made wherever possible, compatible with the facts. Under the 1933 schedule disability ratings require a determination of permanence as provided on page 4 thereof.

Under both schedules, a permanent disability is one which it is reasonably certain will continue unimproved throughout the disabled person's life.

Generally, with disabling diseases and injuries of long standing, the probability of improvement under treatment may be conceded to be remote, and unless specific treatment is indicated for a particular disability, a permanent, and not a temporary, rating is generally in order. A permanent rating may not, however, be granted for a disability under treatment with a good prognosis for permanent improvement, nor for acute infectious disease, recent accident or unhealed injury, unless, in the case of total disability, it is reasonably certain that the subsidence of the acute or temporary symptoms wilĩ be followed by irreducible totality of disability by way of residuals.

(b) All disability ratings relating to impairments, the lesions and symptoms of which have persisted at approximately the same level of severity as shown by two or more examinations at least 5 years apart, unless material improvement in the near future may be anticipated on the basis of evidence pertinent to the individual case, will be placed on a permanent basis

. Mere differences in descriptive and diagnostic terms, or in emphasis or absence of emphasis on successive examinations, will be disregarded in this connection. With a major disability rated on a permanent basis, minor disabilities will be placed on a permanent rating, without regard to fluctuations in the past, except as set forth below.

(c) In the case of diseases or injuries of fluctuating severity over the past 5 year period, where the conversion of the current temporary rating to a permanent rating of the same degree would not be justified, permanent ratings may be made on the basis of the average severity disclosed by examinations covering this 5 year period, including a recent examination, or an examination conducted under $ 3.1265 if necessary. In such cases the several examinations utilized will be individually cited with dates, in connection with the diagnoses in question.

(a) Nothing herein will prevent rating on a permanent basis the residuals of all healed injuries.*i

2.1145 Use of 1933 schedule for remedial conditions. Ratings, including ratings of total disability are authorized under the 1933 schedule for remediable conditions without regard to permanence, when the conditions were caused by or aggravated in the service.**

*For statutory citation, see note to $ 2.1141.

2.1146 Original occupational determinations, 1925 schedule. (a) An occupation is that which occupies, or engages, the time and attention; the principal business of one's life; vocation, employment, calling, trade.

(b) The employment in which the claimant was last engaged prior to his enlistment for military service in the World War, or if the claimant, during this period of employment, was engaged simultaneously in more than one line of work, then the employment which usually occupied the greater number of hours per day, will be regarded as his occupation at the time of enlistment; except, if it is established on the basis of conclusive evidence that the claimant's training and experience has sufficiently qualified him for some other occupation, that he had engaged in this other occupation regularly and habitually and had temporarily left it, such other occupation shall be selected as his true occupation at the time of enlistment.**

2.1148 Effective date of evaluations, 1925 and 1933 schedules in original ratings. (a) Evaluations under the 1933 schedule will be effective as of the date of receipt of the application by the Veterans' Administration under Public, No. 2, 73d Congress, and regulations issued pursuant thereto, or the date the evidence shows a compensable or pensionable degree of disability to have existed, whichever is the later, but in no event prior to March 20, 1933; except that total disability or permanent total evaluations under $8 2.1166 (c), 2.1167, 2.1168 will be effective from the date of the receipt of the claim (original, reopening or increase), or the date the evidence shows entitlement, whichever is the later, but in no event prior to October 16, 1934, (effective date of the change in criteria for establishing total disability under Public, No. 2, 73d Congress), provided, however, that where the claim was in a pending or appellate status as of October 16, 1934, the evaluation will be made effective as of the date of administrative determination (date rating or decision is signed) by the original or appellate rating agency. The effective date of the evaluation will not, however, necessarily control award action.

(b) Evaluations under the 1925 schedule and extensions thereto will be effective as of the date of receipt of the application by the Veterans' Administration under Public, No. 141, 73d Congress, or the date the evidence shows entitlement, whichever is the later, but in no event prior to March 28, 1934.*+

Cross REFERENCES: For determinations as to basic entitlement, see $ 2.1059. For schedule for rating disabilities, see 35.03.

2.1149 Effective dates of evaluations, 1925 and 1933 schedules, in claims for increase. Evaluations under the 1933 schedule, and the 1925 schedule and extensions thereto, in claims for increase, will be effective from the date of the receipt of the evidence, i. e., affidavits of physicians or other evidence submitted by the veteran showing an additional disability, or an increase in the condition for which he is receiving compensation or pension; or the date of the official report of physical examination made in a Veterans' Administration facility, or by a designated examiner in connection with compensation, pension,

*For statutory citation, see note to $ 2.1141.

Page 51

« PreviousContinue »