2.1122 Jurisdiction in claims under section 31, Public, No. 141, 73d Congress. Rating boards in field offices are authorized to make recommendatory ratings in cases other than death properly under their jurisdiction, coming within the provisions of section 31, Public, No. 141, 73d Congress. These ratings will be forwarded together with the case file to central office for review and final rating by the central disability board, claims division, veterans' claims service. After entitlement is establishment, it will not be necessary thereafter, to submit ratings under section 31, Public, No. 141, 73d Congress, to central office for confirmation of the evaluation of the disability or disabilities involved. Ratings prepared in field offices involving only the evaluation of such disabilities will be considered as final for purposes of appropriate award action.* (Sec. 31, 48 Stat. 526; 38 U.S.C. 501a)

CROSS REFERENCE: For determinations as to basic entitlement, see §§ 2.10592.1069.

2.1123 Initial determinations and adjudicative action under section 31, Public, No. 141, 73d Congress. (a) Disability compensation will be payable only when it is determined (1) that there is additional disability, and (2) that such additional disability resulted from an injury or an aggravation of an existing injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination under the War Risk Insurance Act, as amended, or the World War Veterans' Act, 1924, as amended. The following principles will be observed:

(b) The determination that additional disability exists will be based upon a comparison of the beneficiary's physical condition immediately prior to the injury on which the claim for compensation is based, with the subsequent physical condition resulting from the injury. Where it is determined that there is additional disability resulting from an injury or an aggravation of an existing injury suffered as the result of training, hospitalization, medical or surgical treatment, or examination, compensation will be payable only for the additional disability from the date of the incurrence of the injury, in accordance with the terms of the Schedule of Disability Ratings, 1925. This comparison will be made separately for each body part involved. As applied to medical or surgical treatment, the physical condition prior to the injury will be the condition which the specific medical or surgical treatment was designed to relieve; as applied to examinations, the physical condition prior to the injury will be the condition at time of beginning the physical examination as a result of which the injury was sustained.

(c) In determining whether such additional disability results from an injury or an aggravation of an existing injury suffered as the result of training, hospitalization, medical or surgical treatment or examination, the following considerations will govern:

(1) It will be necessary to show that the additional disability is actually the result of such injury or an aggravation of an existing injury and not merely coincidental therewith.

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

(2) Compensation will not be payable for the continuance or natural progress of diseases or injuries for which the training, or hospitalization, etc., was authorized.

(3) The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from an injury or an aggravation of an existing injury suffered as the result of training, or hospitalization, etc.

(4) Compensation is not payable for either the usual or the unusual after results of approved medical care properly administered, in the absence of a showing that the disability proximately resulted through carelessness, accident, negligence, lack of proper skill, error in judgment, etc. The question as to what is an accident, for the purpose of determining entitlement to benefits under section 31, Public, No. 141, 73d Congress, is one for determination by the adjudicating agencies.

(5) Compensation will not be payable for the residuals of medical care or treatment given outside of a Government hospital or clinic unless such medical care or treatment was specifically authorized under one of the Acts referred to in the regulations in this chapter, or unless it is held to be adjunct treatment in connection with other treatment specifically authorized.

(6) The claimant's misconduct or failure to follow instructions in connection with training, hospitalization, medical or surgical treatment, or examination, will bar him from the receipt of compensation hereunder except in the case of incompetent claimants.* ~ (Sec. 31, 48 Stat. 526; 38 U.S.C. 501a)

2.1124 Combination of ratings under section 31, Public, No. 141, 73d Congress. (a) With respect to payment of the greater monetary benefit, it is contemplated that where two or more disabilities exist, including the disability determinable under section 31, Public, No. 141, 73d Congress, the greater monetary benefit will be decided upon only after the several disabilities have been evaluated and combined separately under the alternative laws applicable as herein indicated. For example, under § 3.1245, the several disabilities should be evaluated and combined under § 35.011 in accordance with the Schedule for Rating Disabilities, 1933, and under section 28, Public, No. 141, 73d Congress (48 Stat. 524; 38 U.S.C. 722), in accordance with the Schedule of Disability Ratings, 1925, and extensions thereto; and a comparison of the results obtained will show the greater monetary benefit to be paid.

(b) For the purpose of section 31, ratings will not be combined with ratings for diseases or injuries not due to service. Consequently, where benefits are currently payable for a nonservice connected disability and benefits are found payable under section 31, payment under section 31 will not be authorized unless it is a greater benefit. Where a veteran with wartime service has suffered a compensable or pensionable disability and a service connected compensable or pensionable disability due to war or peacetime service, the evaluation of disability will be combined and payment will be made in accord

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

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ance with the rates provided in paragraph (a).*t (Sec. 31, 48 Stat. 526; 38 U.S.C. 501a)

CROSS REFERENCE: For application of rating schedule, see §§ 2.1141-2.1178. 2.1125 Benefits not payable for disability resulting from examination under Public, No. 2, or Public, No. 141, 73d Congress. No provision is made for awarding monetary benefits for disability resulting from disease or injury incurred or aggravated in submitting to an examination under the authority of veterans' regulations issued pursuant to Public, No. 2, 73d Congress, or Public, No. 141, 73d Congress. However, benefits are payable to any veteran for additional disability or aggravation incurred while submitting to an examination under the War Risk Insurance Act, as amended, or the World War Veterans' Act, 1924, as amended.* (Sec. 31, 48 Stat. 526; 38 U.S.C. 501a)

PRINCIPLES GOVERNING STATUTORY RATINGS

2.1130 Statutory award for loss of use of creative organ, or one or more feet or hands. Under the last paragraph of section 202 (3) of the World War Veterans' Act, as amended July 3, 1930, as reenacted by Public, No. 141, 73d Congress, any veteran shown to have suffered the loss of the use of a creative organ or one or more feet or hands as the result of an injury received in the active service. in line of duty between April 6, 1917 and November 11, 1918, shall be entitled to a statutory award of $25 per month, independently of any other compensation which may be payable under said Act: Provided, however, That if such disability was incurred while the veteran was serving with the United States military forces in Russia, the dates herein stated shall extend from April 6, 1917 to April 1, 1920. This statutory award shall be payable from the date the loss of the use of the creative organ or one or more feet or hands is shown to exist, subject to the provisions of § 35.021 and when payable shall be added to any other compensation payable to the veteran.*† (Sec. 9, 26, 48 Stat. 10, 524, sec. 13, 46 Stat. 998; 38 U.S.C. 473, 473a, 479, 709)

2.1131 Principles for determining entitlement to the statutory award for loss of use of a creative organ. The following principles governing a rating as to entitlement to the statutory award provided by section 202 (3), World War Veterans' Act, 1924, as amended July 3, 1930, as reenacted by Public, No. 141, 73d Congress, for the "loss of use of a creative organ" will be observed:

(a) The loss of use must first be established. Avulsion of one or both testicles or ovaries will suffice for this purpose, as will atrophy when it is demonstrated by proper diagnostic methods that no procreative function remains in the atrophied organ.

(b) The loss being apparent or the loss of use having been properly demonstrated, the additional statutory award of $25 monthly will be authorized when it is established by the official records of the service departments or other competent evidence that the loss or loss of use is the result of trauma incurred in the line of duty in the

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

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.*t (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.

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extensions thereto.*t (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 § 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

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