Custom Federal Regulations Service™

**This is supplemental material**

**for Book B of your set of**

**Federal Regulations**

Title 38, Part 3

*Adjudication*

**Veterans Benefits Administration**

Supplement No. 58

Covering period of *Federal Register* issues

through ­­­­­­­­­­­­July 25, 2003

Copyright © 2003 Jonathan Publishing

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> **GENERAL INSTRUCTIONS**

Custom Federal Regulations Service™

**Supplemental Materials for *Book B***

**Code of Federal Regulations**

**Title 38, Part 3**

***Adjudication***

**Veterans Benefits Administration**

**Supplement No. 58**

25 July 2003

Covering the period of Federal Register issues

through July 25, 2003

When **Book B** was originally prepared, it was current through final
regulations published in the *Federal Register* of 9 August 1991. These
supple­mental materials are designed to keep your regulations up to date.
You should file the attached pages immediately, and record the fact that
you did so on the *Supplement Filing Record* which begins on page B-5 of
Book B, *Adjudication*.

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> B-5) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page B-4.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page B-5)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book B, Supplement No. 58**

**July 25, 2003**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

3.309-1 to 3.309-8 3.309-1 to 3.309-8 §3.309

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

**Be sure to complete the**

***Supplement Filing Record* (page B-5)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book B, Supplement No. 58**

**July 25, 2003**

***Note***: Where substantive changes are made in the text of
regulations, the paragraphs of *Highlights* sections are cited at the
end of the relevant section of text. Thus, if you are reading §3.263,
you will see a note at the end of that section which reads: "Supplement
*Highlights* references---6(2)." This means that paragraph 2 of the
*Highlights* section in Supplement No. 6 contains information about the
changes made in §3.263. By keeping and filing the *Highlights* sections,
you will have a reference source explaining all substantive changes in
the text of the regulations.

***Supplement frequency***: This Book B (*Adjudication*) was originally
supplemented four times a year, in February, May, August, and November.
Beginning 1 August 1995, supplements will be issued *every month* during
which a final rule addition or modification is made to the parts of
Title 38 covered by this book. Supplements will be numbered
consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 18 July 2003, the VA published a final rule, effective that same
date, to amend the adjudication regulations concerning presumptive
service connection for certain diseases by adding cirrhosis of the liver
to the list of diseases for which entitlement to service connection is
presumed for former prisoners of war. Change:

• In §3.309(c), added *cirrhosis of the liver*.

**§3.309 Disease subject to presumptive service connection.**

\(a\) *Chronic diseases.* The following diseases shall be granted
service connection although not otherwise established as incurred in or
aggravated by service if manifested to a compensable degree within the
applicable time limits under §3.307 following service in a period of war
or following peacetime service on or after January 1, 1947, provided the
rebuttable presumption provisions of §3.307 are also satisfied.

Anemia, primary.

Arteriosclerosis.

Arthritis.

Atrophy, Progressive muscular.

Brain hemorrhage.

Brain thrombosis.

Bronchiectasis.

Calculi of the kidney, bladder, or gallbladder.

Cardiovascular-renal disease, including hypertension. (This term applies
to combination involvement 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.)

Cirrhosis of the liver.

Coccidioidomycosis.

Diabetes mellitus.

Encephalitis lethargica residuals.

Endocarditis. (This term covers all forms of valvular heart disease.)

Endocrinopathies.

Epilepsies.

Hansen's disease.

Hodgkin's disease.

Leukemia.

Lupus erythematosus, systemic.

Myasthenia gravis.

Myelitis.

Myocarditis.

Nephritis.

Other organic diseases of the nervous system.

Osteitis deformans (Paget's disease).

Osteomalacia.

Palsy, bulbar.

Paralysis agitans.

Psychoses.

Purpura idiopathic, hemorrhagic.

Raynaud's disease.

Sarcoidosis.

Scleroderma.

Sclerosis, amyotrophic lateral.

Sclerosis, multiple.

Syringomyelia.

Thromboangiitis obliterans (Buerger's disease).

Tuberculosis, active.

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 shall be granted
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 limits under §3.307 or
§3.308 following service in a period of war or following peacetime
service provided the rebuttable presumption provisions of §3.307 are
also satisfied.

Amebiasis.

Blackwater fever.

Cholera.

Dracontiasis.

Dysentery.

Filariasis.

Leishmaniasis, including kala-azar.

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 former prisoners of war.* If a veteran
is: (1) A former prisoner of war and; (2) as such was interned or
detained for not less than 30 days, the following diseases shall be
service-connected if manifest to a degree of 10 percent or more at any
time after discharge or release from active military, naval, or air
service even though there is no record of such disease during service,
provided the rebuttable presumption provisions of §3.307 are also
satisfied.

Avitaminosis.

Beriberi (including beriberi heart disease).

Chronic dysentery.

Helminthiasis.

Malnutrition (including optic atrophy associated with malnutrition).

Pellagra.

Any other nutritional deficiency.

Psychosis.

Any of the anxiety states.

Dysthymic disorder (or depressive neurosis).

> Organic residuals of frostbite, if it is determined that the veteran
> was interned in climatic conditions consistent with the occurrence of
> frostbite.

Post-traumatic osteoarthritis.

Irritable bowel syndrome.

Peptic ulcer disease.

Peripheral neuropathy except where directly related to infectious
causes.

Cirrhosis of the liver.

> **Note**: For purposes of this section, the term *beriberi heart
> disease* includes ischemic heart disease in a former prisoner of war
> who had experienced localized edema during captivity. (Authority: 38
> U.S.C. 1112)

\(d\) *Diseases specific to radiation-exposed veterans.*

\(1\) The diseases listed in paragraph (d)(2) of this section shall be
service-connected if they become manifest in a radiation-exposed veteran
as defined in paragraph (d)(3) of this section, provided the rebuttable
presumption provisions of §3.307 of this part are also satisfied.

\(2\) The diseases referred to in paragraph (d)(1) of this section are
the following:

\(i\) Leukemia (other than chronic lymphocytic leukemia).

\(ii\) Cancer of the thyroid.

\(iii\) Cancer of the breast.

\(iv\) Cancer of the pharynx.

\(v\) Cancer of the esophagus.

\(vi\) Cancer of the stomach.

\(vii\) Cancer of the small intestine.

\(viii\) Cancer of the pancreas.

\(ix\) Multiple myeloma.

\(x\) Lymphomas (except Hodgkin's disease).

\(xi\) Cancer of the bile ducts.

\(xii\) Cancer of the gall bladder.

\(xiii\) Primary liver cancer (except if cirrhosis or hepatitis B is
indicated).

\(xiv\) Cancer of the salivary gland.

\(xv\) Cancer of the urinary tract.

\(xvi\) Bronchiolo-alveolar carcinoma.

\(xvii\) Cancer of the bone.

\(xviii\) Cancer of the brain.

\(xix\) Cancer of the colon.

\(xx\) Cancer of the lung.

\(xxi\) Cancer of the ovary.

> **Note**: For the purposes of this section, the term *urinary tract*
> means the kidneys, renal pelves, ureters, urinary bladder, and
> urethra. (Authority: 38 U.S.C. 1112(c)(2))

\(3\) For purposes of this section:

\(i\) The term *radiation-exposed veteran* means either a veteran who,
while serving on active duty, or an individual who while a member of a
reserve component of the Armed Forces during a period of active duty for
training or inactive duty training, participated in a radiation-risk
activity.

\(ii\) The term *radiation-risk activity* means:

\(A\) Onsite participation in a test involving the atmospheric
detonation of a nuclear device.

\(B\) The occupation of Hiroshima or Nagasaki, Japan, by United States
forces during the period beginning on August 6, 1945, and ending on July
1, 1946.

\(C\) Internment as a prisoner of war in Japan (or service on active
duty in Japan immediately following such internment) during World War II
which resulted in an opportunity for exposure to ionizing radiation
comparable to that of the United States occupation forces in Hiroshima
or Nagasaki, Japan, during the period beginning on August 6, 1945, and
ending on July 1, 1946.

\(D\) (*1*) Service in which the service member was, as part of his or
her official military duties, present during a total of at least 250
days before February 1, 1992, on the grounds of a gaseous diffusion
plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area
identified as K25 at Oak Ridge, Tennessee, if, during such service the
veteran:

(*i*) Was monitored for each of the 250 days of such service through the
use of dosimetry badges for exposure at the plant of the external parts
of veteran's body to radiation; or

(*ii*) Served for each of the 250 days of such service in a position
that had exposures comparable to a job that is or was monitored through
the use of dosimetry badges; or

(*2*) Service before January 1, 1974, on Amchitka Island, Alaska, if,
during such service, the veteran was exposed to ionizing radiation in
the performance of duty related to the Long Shot, Milrow, or Cannikin
underground nuclear tests.

(*3*) For purposes of paragraph (d)(3)(ii)(D)(*1*) of this section, the
term "day" refers to all or any portion of a calendar day.

\(iii\) The term *atmospheric detonation* includes underwater nuclear
detonations.

\(iv\) The term *onsite participation* means:

\(A\) During the official operational period of an atmospheric nuclear
test, presence at the test site, or performance of official military
duties in connection with ships, aircraft or other equipment used in
direct support of the nuclear test.

\(B\) During the six month period following the official operational
period of an atmospheric nuclear test, presence at the test site or
other test staging area to perform official military duties in
connection with completion of projects related to the nuclear test
including decontamination of equipment used during the nuclear test.

\(C\) Service as a member of the garrison or maintenance forces on
Eniwetok during the periods June 21, 1951, through July 1, 1952, August
7, 1956, through August 7, 1957, or November 1, 1958, through April 30,
1959.

\(D\) Assignment to official military duties at Naval Shipyards
involving the decontamination of ships that participated in Operation
Crossroads.

\(v\) For tests conducted by the United States, the term *operational
period* means:

\(A\) For Operation *TRINITY* the period July 16, 1945 through August 6,
1945.

\(B\) For Operation *CROSSROADS* the period July 1, 1946 through August
31, 1946.

\(C\) For Operation *SANDSTONE* the period April 15, 1948 through May
20, 1948.

\(D\) For Operation *RANGER* the period January 27, 1951 through
February 6, 1951.

\(E\) For Operation *GREENHOUSE* the period April 8, 1951 through June
20, 1951.

\(F\) For Operation *BUSTER-JANGLE* the period October 22, 1951 through
December 20, 1951

\(G\) For Operation *TUMBLER-SNAPPER* the period April 1, 1952 through
June 20, 1952.

\(H\) For Operation *IVY* the period November 1, 1952 through December
31, 1952.

\(I\) For Operation *UPSHOT-KNOTHOLE* the period March 17, 1953 through
June 20, 1953.

\(J\) For Operation *CASTLE* the period March 1, 1954 through May 31,
1954.

\(K\) For Operation *TEAPOT* the period February 18, 1955 through June
10, 1955.

\(L\) For Operation *WIGWAM* the period May 14, 1955 through May 15,
1955.

\(M\) For Operation *REDWING* the period May 5, 1956 through August 6,
1956.

\(N\) For Operation *PLUMBBOB* the period May 28, 1957 through October
22, 1957.

\(O\) For Operation *HARDTACK I* the period April 28, 1958 through
October 31, 1958.

\(P\) For Operation *ARGUS* the period August 27, 1958 through September
10, 1958.

\(Q\) For Operation *HARDTACK II* the period September 19, 1958 through
October 31, 1958.

\(R\) For Operation *DOMINIC I* the period April 25, 1962 through
December 31, 1962.

\(S\) For Operation *DOMINIC II/ PLOWSHARE* the period July 6, 1962
through August 15, 1962.

\(vi\) The term *occupation of Hiroshima or Nagasaki, Japan, by United
States forces* means official military duties within 10 miles of the
city limits of either Hiroshima or Nagasaki, Japan, which were required
to perform or support military occupation functions such as occupation
of territory, control of the population, stabilization of the
government, demilitarization of the Japanese military, rehabilitation of
the infrastructure or deactivation and conversion of war plants or
materials.

\(vii\) Former prisoners of war who had an opportunity for exposure to
ionizing radiation comparable to that of veterans who participated in
the occupation of Hiroshima or Nagasaki, Japan, by United States forces
shall include those who, at any time during the period August 6, 1945,
through July 1, 1946:

> \(A\) Were interned within 75 miles of the city limits of Hiroshima or
> within 150 miles of the city limits of Nagasaki, or
>
> \(B\) Can affirmatively show they worked within the areas set forth in
> paragraph (d)(4)(vii)(A) of this section although not interned within
> those areas, or
>
> \(C\) Served immediately following internment in a capacity which
> satisfies the definition in paragraph (d)(4)(vi) of this section, or
>
> \(D\) Were repatriated through the port of Nagasaki. (Authority: 38
> U.S.C. 1110, 1112, 1131)

\(e\) *Disease associated with exposure to certain herbicide agents*. If
a veteran was exposed to an herbicide agent during active military,
naval, or air service, the following diseases shall be service-connected
if the requirements of §3.307(a)(6) are met even though there is no
record of such disease during service, provided further that the
rebuttable presumption provisions of §3.307(d) are also satisfied.

Chloracne or other acneform disease consistent with chloracne

Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset
diabetes)

Hodgkin's disease

Chronic lymphocytic leukemia

Multiple myeloma

Non-Hodgkin's lymphoma

Acute and subacute peripheral neuropathy

Porphyria cutanea tarda

Prostate cancer

Respiratory cancers (cancer of the lung, bronchus, larynx, or trachea)

Soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's
sarcoma, or mesothelioma)

> **Note 1:** The term *soft-tissue sarcoma* includes the following:

Adult fibrosarcoma

Dermatofibrosarcoma protuberans

Malignant fibrous histiocytoma

Liposarcoma

Leiomyosarcoma

Epithelioid leiomyosarcoma (malignant leiomyoblastoma)

Rhabdomyosarcoma

Ectomesenchymoma

Angiosarcoma (hemangiosarcoma and lymphangiosarcoma)

Proliferating (systemic) angioendotheliomatosis

Malignant glomus tumor

Malignant hemangiopericytoma

Synovial sarcoma (malignant synovioma)

Malignant giant cell tumor of tendon sheath

Malignant schwannoma, including malignant schwannoma with
rhabdomyoblastic differentiation (malignant Triton tumor), glandular and
epithelioid malignant schwannomas

Malignant mesenchymoma

Malignant granular cell tumor

Alveolar soft part sarcoma

Epithelioid sarcoma

Clear cell sarcoma of tendons and aponeuroses

Extraskeletal Ewing's sarcoma

Congenital and infantile fibrosarcoma

Malignant ganglioneuroma

> **Note 2**: For purposes of this section, the term acute and subacute
> peripheral neuropathy means transient peripheral neuropathy that
> appears within weeks or months of exposure to an herbicide agent and
> resolves within two years of the date of onset.

\[41 FR 55873, Dec. 23, 1976 and 47 FR 11656, Mar. 18, 1982, as amended
at 47 FR 54436, Dec. 3, 1982; 49 FR 47003, Nov. 30, 1984; 53 FR 23236,
June 21, 1988; 54 FR 26029, June 21, 1989; 57 FR 10426, Mar. 26, 1992;
58 FR 25564, Apr. 27, 1993; 58 FR 29109, May 19, 1993; 58 FR 41636, Aug.
5, 1993; 59 FR 5107, Feb. 3, 1994; 59 FR 25329, May 16, 1994; 59 FR
29724, June 9, 1994; 59 FR 35465, July 12, 1994; 60 FR 31252, June 14,
1995; 61 FR 57589, Nov. 7, 1996; 65 FR 43700, July 14, 2000; 66 FR
23168, May 8, 2001; 67 FR 3615, Jan. 25, 2002; 67 FR 67793, Nov. 7,
2002; 68 FR 42603, July 18, 2003; 68 FR 59542, Oct. 16, 2003\]

**Supplement *Highlights* references**: 7(6, 8), 10(1), 11(1), 12(1,5),
16(3), 24(3), 43(1),

46(2), 50(1), 56(2), 58(1), 60(2).

Reserved