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. 79

Covering period of *Federal Register* issues

through June 4, 2008

Copyright © 2008 Jonathan Publishing

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Copyright © 2008 Jonathan Publishing

> **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. 79**

5 June 2008

Covering the period of Federal Register issues

through June 4, 2008

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. 79**

**June 5, 2008**

*Remove these Add these Section(s)*

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

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

**all prior supplements have been filed**

3.4-1 to 3.6-1 3.4-1 to 3.6-1 §3.5

**3.158-1 to 3.159-5 3.158-1 to 3.159-5 §3.159**

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

**Be sure to complete the**

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

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

> **HIGHLIGHTS**

**Book B, Supplement No. 79**

**June 5, 2008**

***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 30 April 2008, the VA published a final rule, effective 30 May
2008, to provide a claimant with notice of the information and evidence
necessary to substantiate a claim, and VA's duty to assist a claimant in
obtaining the evidence necessary to substantiate the claim. Changes:

In §3.5, revised a statutory reference in paragraph(b)(3); and

In §3.159, revised paragraph (b)(1), and added new paragraph (b)(3) and
(g).

2\. On 28 May 2008, the VA published a correcting amendment, to correct
a rule originally published on 27 April 1993 (58 Fed. Reg. 25563), by
amending the cross-reference in §3.309(d)(3)(vii)(B).

\-

**§3.4 Compensation.**

\(a\) *Compensation.* This term means a monthly payment made by the
Department of Veterans Affairs to a veteran because of service-connected
disability, or to a surviving spouse, child, or parent of a veteran
because of the service-connected death of the veteran occurring before
January 1, 1957, or under the circumstances outlined in paragraph (c)(2)
of this section. If the veteran was discharged or released from service,
the discharge or release must have been under conditions other than
dishonorable. (Authority: 38 U.S.C. 101(2), (13))

\(b\) *Disability compensation*.

\(1\) Basic entitlement for a veteran exists if the veteran is disabled
as the result of a personal injury or disease (including aggravation of
a condition existing prior to service) while in active service if the
injury or the disease was incurred or aggravated in line of duty.
(Authority: 38 U.S.C. 1110, 1131)

\(2\) An additional amount of compensation may be payable for a spouse,
child, and/or dependent parent where a veteran is entitled to
compensation based on disability evaluated as 30 per centum or more
disabling. (Authority: 38 U.S.C. 1115)

\(c\) *Death compensation*. Basic entitlement exists for a surviving
spouse, child or children, and dependent parent or parents if:

\(1\) The veteran died before January 1, 1957; or

\(2\) The veteran died on or after May 1, 1957, and before January 1,
1972, if at the time of death a policy of United States Government Life
Insurance or National Service Life Insurance was in effect under waiver
of premiums under 38 U.S.C. 1924 unless the waiver was granted under the
first proviso of section 622(a) of the National Service Life Insurance
Act of 1940, and the veteran died before return to military jurisdiction
or within 120 days thereafter. (See §3.5(d) as to Public Health
Service.) (Authority: 38 U.S.C. 1121, 1141)

\[26 FR 1564, Feb. 24, 1961, as amended at 38 FR 21923, Aug. 14, 1973;
39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr. 17, 1979\]

**§3.5 Dependency and indemnity compensation.**

\(a\) "Dependency and indemnity compensation." This term means a monthly
payment made by the Department of Veterans Affairs to a surviving
spouse, child, or parent:

\(1\) Because of a service-connected death occurring after December 31,
1956, or

\(2\) Pursuant to the election of a surviving spouse, child, or parent,
in the case of such a death occurring before January 1, 1957.
(Authority: 38 U.S.C. 101(14))

\(b\) *Entitlement*. Basic entitlement for a surviving spouse, child or
children, and parent or parents of a veteran exists, if:

\(1\) Death occurred on or after January 1, 1957, except in the
situation specified in §3.4(c)(2); or

\(2\) Death occurred prior to January 1, 1957, and the claimant was
receiving or eligible to receive death compensation on December 31, 1956
(or, as to a parent, would have been eligible except for income), under
laws in effect on that date or who subsequently becomes eligible by
reason of a death which occurred prior to January 1, 1957; or

\(3\) Death occurred on or after May 1, 1957, and before January 1,
1972, and the claimant had been ineligible to receive dependency and
indemnity compensation because of the exception in subparagraph (1) of
this paragraph. In such case dependency and indemnity compensation is
payable upon election. (Authority: 38 U.S.C. 1310, 1316, 1317, Public
Law 92-197, 85 Stat. 660)

\(c\) *Exclusiveness of remedy*. No person eligible for dependency and
indemnity compensation by reason of a death occurring on or after
January 1, 1957, shall be eligible by reason of such death for death
pension or compensation under any other law administered by the
Department of Veterans Affairs, except that, effective November 2, 1994,
a surviving spouse who is receiving dependency and indemnity
compensation may elect to receive death pension instead of such
compensation. (Authority: 38 U.S.C. 1317)

\(d\) *Group life insurance.* No dependency and indemnity compensation
or death compensation shall be paid to any surviving spouse, child or
parent based on the death of a commissioned officer of the Public Health
Service the Coast and Geodetic Survey, the Environmental Science
Services Administration, or the National Oceanic and Atmospheric
Administration occurring on or after May 1, 1957, if any amounts are
payable under the Federal Employees' Group Life Insurance Act of 1954
(Pub. L. 598, 83d Cong., as amended) based on the same death.
(Authority: Sec. 501(c)(2), Pub. L. 881, 84th Cong. (70 Stat. 857), as
amended by Sec. 13(u), Pub. L. 85-857; (72 Stat. 1266); Sec. 5, Pub. L.
91-621(84 Stat. 1863))

\[29 FR 10396, July 25, 1964, as amended at 35 FR 18661, Dec. 9, 1970;
37 FR 6676 Apr. 1, 1972; 39 FR 34529, Sept. 26, 1974; 44 FR 22717, Apr.
17, 1979; 57 FR 34517, Aug. 5, 1992; 58 FR 25561, Apr. 17, 1993; 58 FR
27622, May 10, 1993; 60 FR 18355, Apr. 11, 1995; 70 FR 72220, Dec. 2,
2005; 73 FR 23356, Apr. 30, 2008; 73 FR 24868, May 6, 2008\]

**Supplement *Highlights* references**: 7(3), 15(3), 69(1), 79(1).

**3.6 Duty periods.**

\(a\) *Active military, naval, and air service*. This includes active
duty, any period of active duty for training during which the individual
concerned was disabled or died from a disease or injury incurred or
aggravated in line of duty, and any period of inactive duty training
during which the individual concerned was disabled or died from an
injury incurred or aggravated in line of duty or from an acute
myocardial infarction, a cardiac arrest, or a cerebrovascular accident
which occurred during such training. (Authority: 38 U.S.C. 101(24))

\(b\) ÒActive duty.Ó This means:

\(1\) Full-time duty in the Armed Forces, other than active duty for
training.

\(2\) Full-time duty (other than for training purposes) as a
commissioned officer of the Regular or Reserve Corps of the Public
Health Service:

\(i\) On or after July 29, 1945, or

\(ii\) Before that date under circumstances affording entitlement to
Òfull military benefits,Ó or

\(iii\) At any time, for the purposes of dependency and indemnity
compensation.

\(3\) Full-time duty as a commissioned officer of the Coast and Geodetic
Survey or of its successor agencies, the Environmental Science Services
Administration and the National Oceanic and Atmospheric Administration:

\(i\) On or after July 29, 1945, or

\(ii\) Before that date:

\(a\) While on transfer to one of the Armed Forces, or

\(b\) While, in time of war or national emergency declared by the
President, assigned to duty on a project for one of the Armed Forces in
an area determined by the Secretary of Defense to be of immediate
military hazard, or

\(c\) In the Philippine Islands on December 7, 1941, and continuously in
such islands thereafter, or

\(iii\) At any time, for the purposes of dependency and indemnity
compensation.

\(4\) Service at any time as a cadet at the United States Military, Air
Force, or Coast Guard Academy, or as a midshipman at the United States
Naval Academy.

**§3.158 Abandoned claims.**

\(a\) *General*. Except as provided in §3.652 of this part, where
evidence requested in connection with an original claim, a claim for
increase or to reopen or for the purpose of determining continued
entitlement is not furnished within 1 year after the date of request,
the claim will be considered abandoned. After the expiration of 1 year,
further action will not be taken unless a new claim is received. Should
the right to benefits be finally established, pension, compensation,
dependency and indemnity compensation, or monetary allowance under the
provisions of 38 U.S.C. chapter 18 based on such evidence shall commence
not earlier than the date of filing the new claim. (Authority: 38 U.S.C.
501(a))

\(b\) *Department of Veterans Affairs examinations*. Where the veteran
fails without adequate reason to respond to an order to report for
Department of Veterans Affairs examination within 1 year from the date
of request and payments have been discontinued, the claim for such
benefits will be considered abandoned.

\(c\) *Disappearance*. Where payments of pension, compensation,
dependency and indemnity compensation, or monetary allowance under the
provisions of 38 U.S.C. chapter 18 have not been made or have been
discontinued because a payee's present whereabouts is unknown, payments
will be resumed effective the day following the date of last payment if
entitlement is otherwise established, upon receipt of a valid current
address.

\[27 FR 11887, Dec. 1, 1962, as amended at 28 FR 13362, Dec. 10, 1963;
52 FR 43063, Nov. 9, 1987; 62 FR 51278, Sept. 30, 1997; 67 FR 49586,
July 31, 2002\]

**Cross references:** Periodic certification of continued eligibility.
See §3.652. Failure to report for VA examination. See §3.655.
Disappearance of veteran. See §3.656.

**Supplement *Highlights* references**: 31(1), 54(2).

**§3.159 Department of Veterans Affairs assistance in developing
claims.**

\(a\) *Definitions*. For purposes of this section, the following
definitions apply:

\(1\) *Competent medical evidence* means evidence provided by a person
who is qualified through education, training, or experience to offer
medical diagnoses, statements, or opinions. Competent medical evidence
may also mean statements conveying sound medical principles found in
medical treatises. It would also include statements contained in
authoritative writings such as medical and scientific articles and
research reports or analyses.

\(2\) *Competent lay evidence* means any evidence not requiring that the
proponent have specialized education, training, or experience. Lay
evidence is competent if it is provided by a person who has knowledge of
facts or circumstances and conveys matters that can be observed and
described by a lay person.

\(3\) *Substantially complete application* means an application
containing the claimant's name; his or her relationship to the veteran,
if applicable; sufficient service information for VA to verify the
claimed service, if applicable; the benefit claimed and any medical
condition(s) on which it is based; the claimant's signature; and in
claims for nonservice-connected disability or death pension and parents'
dependency and indemnity compensation, a statement of income.

\(4\) For purposes of paragraph (c)(4)(i) of this section, *event* means
one or more incidents associated with places, types, and circumstances
of service giving rise to disability.

\(5\) *Information* means non-evidentiary facts, such as the claimant's
Social Security number or address; the name and military unit of a
person who served with the veteran; or the name and address of a medical
care provider who may have evidence pertinent to the claim.

\(b\) *VA's duty to notify claimants of necessary information or
evidence*.

\(1\) When VA receives a complete or substantially complete application
for benefits, it will notify the claimant of any information and medical
or lay evidence that is necessary to substantiate the claim (hereafter
in this paragraph referred to as the "notice"). In the notice, VA will
inform the claimant which information and evidence, if any, that the
claimant is to provide to VA and which information and evidence, if any,
that VA will attempt to obtain on behalf of the claimant. The
information and evidence that the claimant is informed that the claimant
is to provide must be provided within one year of the date of the
notice. If the claimant has not responded to the notice within 30 days,
VA may decide the claim prior to the expiration of the one-year period
based on all the information and evidence contained in the file,
including information and evidence it has obtained on behalf of the
claimant and any VA medical examinations or medical opinions. If VA does
so, however, and the claimant subsequently provides the information and
evidence within one year of the date of the notice, VA must readjudicate
the claim. (Authority: 38 U.S.C. 5103)

\(2\) If VA receives an incomplete application for benefits, it will
notify the claimant of the information necessary to complete the
application and will defer assistance until the claimant submits this
information. (Authority: 38 U.S.C. 5102(b), 5103A(3))

\(3\) No duty to provide the notice described in paragraph (b)(1) of
this section arises:

\(i\) Upon receipt of a Notice of Disagreement; or

\(ii\) When, as a matter of law, entitlement to the benefit claimed
cannot be established. (Authority: 38 U.S.C. 5103(a), 5103A(a)(2))

\(c\) *VA's duty to assist claimants in obtaining evidence*. Upon
receipt of a substantially complete application for benefits, VA will
make reasonable efforts to help a claimant obtain evidence necessary to
substantiate the claim. In addition, VA will give the assistance
described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual
attempting to reopen a finally decided claim. VA will not pay any fees
charged by a custodian to provide records requested.

\(1\) *Obtaining records not in the custody of a Federal department or
agency*. VA will make reasonable efforts to obtain relevant records not
in the custody of a Federal department or agency, to include records
from State or local governments, private medical care providers, current
or former employers, and other non-Federal governmental sources. Such
reasonable efforts will generally consist of an initial request for the
records and, if the records are not received, at least one follow-up
request. A follow-up request is not required if a response to the
initial request indicates that the records sought do not exist or that a
follow-up request for the records would be futile. If VA receives
information showing that subsequent requests to this or another
custodian could result in obtaining the records sought, then reasonable
efforts will include an initial request and, if the records are not
received, at least one follow-up request to the new source or an
additional request to the original source.

\(i\) The claimant must cooperate fully with VA's reasonable efforts to
obtain relevant records from non-Federal agency or department
custodians. The claimant must provide enough information to identify and
locate the existing records, including the person, company, agency, or
other custodian holding the records; the approximate time frame covered
by the records; and, in the case of medical treatment records, the
condition for which treatment was provided.

\(ii\) If necessary, the claimant must authorize the release of existing
records in a form acceptable to the person, company, agency, or other
custodian holding the records. (Authority: 38 U.S.C. 5103A(b))

\(2\) *Obtaining records in the custody of a Federal department or
agency*. VA will make as many requests as are necessary to obtain
relevant records from a Federal department or agency. These records
include but are not limited to military records, including service
medical records; medical and other records from VA medical facilities;
records from non-VA facilities providing examination or treatment at VA
expense; and records from other Federal agencies, such as the Social
Security Administration. VA will end its efforts to obtain records from
a Federal department or agency only if VA concludes that the records
sought do not exist or that further efforts to obtain those records
would be futile. Cases in which VA may conclude that no further efforts
are required include those in which the Federal department or agency
advises VA that the requested records do not exist or the custodian does
not have them.

\(i\) The claimant must cooperate fully with VA's reasonable efforts to
obtain relevant records from Federal agency or department custodians. If
requested by VA, the claimant must provide enough information to
identify and locate the existing records, including the custodian or
agency holding the records; the approximate time frame covered by the
records; and, in the case of medical treatment records, the condition
for which treatment was provided. In the case of records requested to
corroborate a claimed stressful event in service, the claimant must
provide information sufficient for the records custodian to conduct a
search of the corroborative records.

\(ii\) If necessary, the claimant must authorize the release of existing
records in a form acceptable to the custodian or agency holding the
records. (Authority: 38 U.S.C. 5103A(b))

\(3\) *Obtaining records in compensation claims*. In a claim for
disability compensation, VA will make efforts to obtain the claimant's
service medical records, if relevant to the claim; other relevant
records pertaining to the claimant's active military, naval or air
service that are held or maintained by a governmental entity; VA medical
records or records of examination or treatment at non-VA facilities
authorized by VA; and any other relevant records held by any Federal
department or agency. The claimant must provide enough information to
identify and locate the existing records including the custodian or
agency holding the records; the approximate time frame covered by the
records; and, in the case of medical treatment records, the condition
for which treatment was provided. (Authority: 38 U.S.C. 5103A(c))

\(4\) *Providing medical examinations or obtaining medical opinions*.

\(i\) In a claim for disability compensation, VA will provide a medical
examination or obtain a medical opinion based upon a review of the
evidence of record if VA determines it is necessary to decide the claim.
A medical examination or medical opinion is necessary if the information
and evidence of record does not contain sufficient competent medical
evidence to decide the claim, but:

\(A\) Contains competent lay or medical evidence of a current diagnosed
disability or persistent or recurrent symptoms of disability;

\(B\) Establishes that the veteran suffered an event, injury or disease
in service, or has a disease or symptoms of a disease listed in §3.309,
§3.313, §3.316, and §3.317 manifesting during an applicable presumptive
period provided the claimant has the required service or triggering
event to qualify for that presumption; and

\(C\) Indicates that the claimed disability or symptoms may be
associated with the established event, injury, or disease in service or
with another service-connected disability.

\(ii\) Paragraph (4)(i)(C) could be satisfied by competent evidence
showing post-service treatment for a condition, or other possible
association with military service.

\(iii\) Paragraph (c)(4) applies to a claim to reopen a finally
adjudicated claim only if new and material evidence is presented or
secured. (Authority: 38 U.S.C. 5103A(d))

\(d\) *Circumstances where VA will refrain from or discontinue providing
assistance*. VA will refrain from providing assistance in obtaining
evidence for a claim if the substantially complete application for
benefits indicates that there is no reasonable possibility that any
assistance VA would provide to the claimant would substantiate the
claim. VA will discontinue providing assistance in obtaining evidence
for a claim if the evidence obtained indicates that there is no
reasonable possibility that further assistance would substantiate the
claim. Circumstances in which VA will refrain from or discontinue
providing assistance in obtaining evidence include, but are not limited
to:

\(1\) The claimant's ineligibility for the benefit sought because of
lack of qualifying service, lack of veteran status, or other lack of
legal eligibility;

\(2\) Claims that are inherently incredible or clearly lack merit; and

\(3\) An application requesting a benefit to which the claimant is not
entitled as a matter of law. (Authority: 38 U.S.C. 5103A(a)(2))

\(e\) *Duty to notify claimant of inability to obtain records*.

\(1\) If VA makes reasonable efforts to obtain relevant non-Federal
records but is unable to obtain them, or after continued efforts to
obtain Federal records concludes that it is reasonably certain they do
not exist or further efforts to obtain them would be futile, VA will
provide the claimant with oral or written notice of that fact. VA will
make a record of any oral notice conveyed to the claimant. For
non-Federal records requests, VA may provide the notice at the same time
it makes its final attempt to obtain the relevant records. In either
case, the notice must contain the following information:

> \(i\) The identity of the records VA was unable to obtain;
>
> \(ii\) An explanation of the efforts VA made to obtain the records;
>
> \(iii\) A description of any further action VA will take regarding the
> claim, including, but not limited to, notice that VA will decide the
> claim based on the evidence of record unless the claimant submits the
> records VA was unable to obtain; and
>
> \(iv\) A notice that the claimant is ultimately responsible for
> providing the evidence.

\(2\) If VA becomes aware of the existence of relevant records before
deciding the claim, VA will notify the claimant of the records and
request that the claimant provide a release for the records. If the
claimant does not provide any necessary release of the relevant records
that VA is unable to obtain, VA will request that the claimant obtain
the records and provide them to VA. (Authority: 38 U.S.C. 5103A(b)(2))

\(f\) For the purpose of the notice requirements in paragraphs (b) and
(e) of this section, notice to the claimant means notice to the claimant
or his or her fiduciary, if any, as well as to his or her
representative, if any. (Authority: 38 U.S.C. 5102(b), 5103(a))

\(g\) The authority recognized in subsection (g) of 38 U.S.C. 5103A is
reserved to the sole discretion of the Secretary and will be
implemented, when deemed appropriate by the Secretary, through the
promulgation of regulations. (Authority: 38 U.S.C. 5103A(g))

\[55 FR 52273, Dec. 21, 1990, as amended at 66 FR 45630, Aug. 29, 2001;
73 FR 23356, Apr. 30, 2008; 73 FR 24868, May 6, 2008\]

**Supplement *Highlights* references**: 47(1), 79(1).

**§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*.

\(1\) If a veteran is a former prisoner of war, the following diseases
shall be service connected if manifest to a degree of disability 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.

> 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.

Atherosclerotic heart disease or hypertensive vascular disease
(including hypertensive heart disease) and their complications
(including myocardial infarction, congestive heart failure, arrhythmia).

Stroke and its complications.

\(2\) If the veteran:

\(i\) Is a former prisoner of war and;

\(ii\) 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.

Irritable bowel syndrome.

Peptic ulcer disease.

Peripheral neuropathy except where directly related to infectious
causes.

> Cirrhosis of the liver.
>
> **Authority:** 38 U.S.C. 1112(b).

\(d\) *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.

\(E\) Service in a capacity which, if performed as an employee of the
Department of Energy, would qualify the individual for inclusion as a
member of the Special Exposure Cohort under section 3621(14) of the
Energy Employees Occupational Illness Compensation Program Act of 2000
(42 U.S.C. 7384l(14)).

\(iii\) 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)(3)(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.

\[41 FR 55873, Dec. 23, 1976 and 47 FR 11656, Mar. 18, 1982, as amended
at 47 FR 54436, Dec. 3, 1982; 49 FR 47003, Nov. 30, 1984; 53 FR 23236,
June 21, 1988; 54 FR 26029, June 21, 1989; 57 FR 10426, Mar. 26, 1992;
58 FR 25564, Apr. 27, 1993; 58 FR 29109, May 19, 1993; 58 FR 41636, Aug.
5, 1993; 59 FR 5107, Feb. 3, 1994; 59 FR 25329, May 16, 1994; 59 FR
29724, June 9, 1994; 59 FR 35465, July 12, 1994; 60 FR 31252, June 14,
1995; 61 FR 57589, Nov. 7, 1996; 65 FR 43700, July 14, 2000; 66 FR
23168, May 8, 2001; 67 FR 3615, Jan. 25, 2002; 67 FR 67793, Nov. 7,
2002; 68 FR 42603, July 18, 2003; 68 FR 59542, Oct. 16, 2003; 69 FR
31882, June 8, 2004; 69 FR 60089, Oct. 7, 2004; 70 FR 37040, June 28,
2005; 71 FR 44918, Aug. 8, 2006; 73 FR 30485, May 28, 2008\]

> **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),
> 62(1), 64(1), 67(1). 72(2), 79(2).