Department of Veterans Affairs

lower extremity at or above the knee
or service-connected amputations of
both lower extremities at or above the
ankles, shall be held to be the proxi-
mate result of the service-connected
amputation or amputations.

(Authority: 38 U.S.C, 501, 1110-1131)
[44 FR 50340, Aug. 28, 1979}

° $3.811 Claims based on exposure to
. ionizing radiation.
£ (a) Determinations of exposure and
4 dose—(1) Dose assessment. In all claims
‘@ which it is established that a
radiogenic disease first became mani-
fest after service and was not manifest
to a compensable degree within any ap-
plicable presumptive period as speci-
fied in §3.307 or §3.309, and it is con-
tended the disease is a result of expo-
sure to ionizing radiation in service, an
assessment will be made as to the size
and nature of the radiation dose 9;
doses. When dose estimates provided
pursuant to paragraph (a)(2) of this sec-
tion are reported as a range of doses to
which a veteran may~have been ex-
posed, exposure at the highest level of!
the dose range reported will be prez
sumed.

(Authority: 38 U.S.C. 501)

(2) Request for dose information. Where
necessary pursuant to paragraph (a)(1)
of this section, dose information will
be requested as follows:

(i) Atmospheric nuclear weapons test
participation claims, In claims based
upon participation in atmospheric nu-
clear testing, dose data will in all cases
be requested from the appropriate of-
fice of the Department of Defense.

(i) Hiroshima and Nagasaki occupation
claims. In all claims based on participa-
tion in the American occupation of
Hiroshima or Nagasaki, Japan, prior to
July 1, 1946, dose data will be requested
from the Department of Defense.

(ii) Other exposure claims. In all other
claims involving radiation exposure, a
request will be made for any available
records concerning the veteran's expo-
sure to radiation. These records nor-
mally include but may not be limited
to the veteran's Record of Occupa-
tional Exposure to Ionizing Radiation
(DD Form 114}), if maintained, service
medical records, and other records
which may contain information per-

§3.311

taining to the veteran's radiation dose
in service. All such records will be for-
warded to the Under Secretary for
Health, who will be responsible for
preparation of a dose estimate, to the
extent feasible, based on available
methodologies.

(3) Referral to independent expert.
When necessary to reconcile a material
difference between an estimate of dose,
from a credible source, submitted by or
on behalf of a claimant, and dose data
derived from official military records,
the estimates and supporting docu-

mentation shall be referred to_an_inde-
indent expert, selected -
‘tor ie Nation itutes of

fealth, whos) are a separate
Tadiation dose estimate for consider-
ation in adjudication of the claim. For
purposes of this paragraph:

(i) The difference between the claim-
‘ant's estimate and dose data derived
from official military records shall or-
dinarily be considered material if one
estimate is at least double the other
estimate.

@i) A dose estimate shall be consid-
ered from a “‘credible source’ if pre-
pared by a person or persons certified
by an appropriate professional body in
the field of health physics, nuclear
medicine or radiology and if based on
analysis of the facts and circumstances
of the particular claim.

(4) Exposure. In cases described in
paragraph (a)(2)(i) and (ti) of this sec-
tion:

(i) If military records do not estab-
lish presence at or absence from a site
at which exposure to radiation is
claimed to have occurred, the veteran's \é
presence at the site will be conceded.

ii) Neither the Tor the vet-
eran's survivors may be required to
produce evidence substantiating expo-
sure if the information in the veteran's
service records or other records main-
tained by the Department of Defense is
consistent with the claim that the vet-
eran was present where and when the
claimed exposure occurred.

(b) Initial review of claims. (1) When it
is determined:

(i) A veteran was exposed to ionizing
radiation as a result of participation in
the atmospheric testing of nuclear
weapons, the occupation of Hiroshima
or Nagasaki, Japan, from September

225


§3.312

nonservice-related condition or event
is more likely the cause of the disease.

(Authority: Pub. L. 98-542)

[50 FR 34459, Aug. 26, 1985, as amended at 54
FR 42803, Oct. 18, 1989; 58 FR 16359, Mar. 26,
1993. Redesignated at 59 FR 5107, Feb. 3, 1994,
and amended at 59 FR 45975, Sept. 6, 1994; 60
FR 9628, Feb. 21, 1995; 60 FR 53277, Oct. 13,
1995; 63 FR 50994, Sept. 24, 1998]

$3.912 Cause of death.

(a) General. The death of a veteran
will be considered as having been due
to a service-connected disability when
the evidence establishes that such dis-
ability was either the principal or a
contributory cause of death. The issue
involved will be determined by exercise
of sound judgment, without recourse to
speculation, after a careful analysis
has been made of all the facts and cir-
cumstances surrounding the death of
the veteran, including, particularly,
autopsy reports.

{b) Principal cause of death. The serv-
ice-connected disability will be consid-
ered as the principal (primary) cause of
death when such disability, singly or
jointly with some other condition, was
the immediate or underlying cause of
death or was etiologically related
thereto.

(©) Contributory cause of death. (i)
Contributory cause of death is inher-
ently one not related to the principal
cause. In determining whether the
service-connected disability contrib-
uted to death, it must be shown that it
contributed substantially or materi-
ally; that it combined to cause death;
that it aided or lent assistance to the
production of death. It is not sufficient
to show that it casually shared in pro-
ducing death, but rather it must be
shown that there was a causal connec-
tion.

@) Generally, minor  service-con-
nected disabilities, particularly those
of a static nature or not materially af-
fecting a vital organ, would not be held
to have contributed to death primarily
due to unrelated disability. In the same
category there would be included serv-
ice-connected disease or injuries of any
evaluation (even though evaluated as
100 percent disabling) but of a quies-
cent or static nature involving mus-
cular or skeletal functions and not ma-

38 CFR Ch. | (7-1-00 Edition)

terially affecting other vital body func-
tions.

@) Service-connected diseases or in-
juries involving active processes affect-
ing vital organs should receive careful
consideration as a contributory cause
of death, the primary cause being unre-
lated, from the viewpoint of whether
there were resulting debilitating ef-
fects and general impairment of health
to an extent that would render the per-
son materially less capable of resisting
the effects of other disease or injury
primarily causing death. Where the
service-connected condition affects
vital organs as distinguished from mus-
cular or skeletal functions and is eval-
uated as 100 percent disabling, debilita-
tion may be assumed.

(4) There are primary causes of death
which by their very nature are so over-
whelming that eventual death can be
anticipated irrespective of coexisting
conditions, but, even in such cases,
there is for consideration whether
there may be a reasonable basis for
holding that a service-connected condi-
tion was of such severity as to have a
material influence in accelerating
death. In this situation, however, it
would not generally be reasonable to
hold that a service-connected condition
accelerated death unless such condi-
tion affected a vital organ and was of
itself of a progressive or debilitating
nature.

[26 FR 1582, Feb. 24, 1961, as amended at 54
FR 34981, Aug. 23, 1989; 54 FR 42803, Oct. 18,
1989]

Cross REFERENCES: Reasonable doubt. See
§3.102, Service connection for mental un-
soundness in suicide. See §3.302.

$3.813 Claims based on service in Viet-
nam.

(a) Service in Vietnam. Service in Viet-
nam includes service in the waters off-
shore, or service in other locations if
the conditions of service involved duty
or visitation in Vietnam.

(b) Service connection based on service
in Vietnam. Service in Vietnam during
the Vietnam Era together with the de-
velopment of non-Hodgkin's lymphoma
manifested subsequent to such service

228



§3.310

or support military occupation func-
tions 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 mate-
rials.

(vii) Former prisoners of war who had
an opportunity for exposure to ionizing
radiation comparable to that of vet-
erans who participated in the occupa-
tion of Hiroshima or Nagasaki, Japan,
by United States forces shall include
those who, at any time during the pe-
riod 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 in-
ternment 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)

(©) 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 re-
buttable presumption provisions of
§3.307(d) are also satisfied.

Chloracne or other acneform disease con-
sistent with chloracne

Hodgkin's disease

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 I: The term “soft-tissue sarcoma” in-
cludes the following:

38 CFR Ch. | (7-1-00 Edition)

Adult fibrosarcoma

Dermatofibrosarcoma protuberans

Malignant fibrous histiocytoma

Liposarcoma

Leiomyosarcoma

Epithelioid leiomyosarcoma (malignant
‘Telomyoblastoma)

Rhabdomyosarcoma

Ectomesenchymoma

‘Angiosarcoma —(hemangtosarcoma and
lymphanglosarcoma)

Proliferating (systemic)
angioendotheliomatosis

Malignant glomus tumor

Malignant hemanglopericytoma .

Synovial sarcoma (malignant synovioma)

Malignant giant cell tumor of tendon sheath

Malignant schwannoma, including malig-
nant schwannoma with rhabdomyoblastic
differentiation (malignant Triton tumor),

glandular and epithe! 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

Nove 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.

(Authority: 38 U.S.C. 501{a) and 1116)

[41 FR $5873, 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,
Tune 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; §9 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]

$3.310 Proximate results, secondary
conditions.

(a) Gerieral. Disability which is proxi-
mately due to or the result of a serv-
ice-connected disease or injury shall be
service connected. When service con-
nection is thus established for a sec-
ondary condition, the secondary condi-
tion shall be considered a part of the
original condition.

(b) Cardiovascular disease. Ischemic
heart disease or other cardiovascular
disease developing in a veteran who has
a service-connected amputation of one

224

Saves


§3.311

1945 until July 1946, or other activities
as claimed;

Gi) The veteran subsequently devel-
oped a radiogenic disease; and

(11) Such disease first became mani-
fest within the period specified in para-
graph (b)(5) of this section; before its
adjudication the claim will be referred
to the Under Secretary for Benefits for
further consideration in accordance
with paragraph (c) of this section. If
any of the foregoing 3 requirements has
not been met, it shall not be deter-
mined that a disease has resulted from
exposure to ionizing radiation under
such circumstances.

(2) For purposes of this section the
term “fadionsnie disease” means a dis-
ease that may be Induced by ionizing
radiation and shall include the fol-
lowing:

G) All forms of leukemia except
chronic lymphatic (lymphocytic) leu-
kemia;

i) Thyroid cancer;

Gii) Breast cancer;

Gv) Lung cancer;

(v) Bone cancer;

(vi) Liver cancer;

(vii) Skin cancer;

(viii) Esophageal cancer;

{ix) Stomach cancer;

(x) Colon cancer;

(xi) Pancreatic cancer;

(xii) Kidney cancer;

(xiii) Urinary bladder cancer;

(xiv) Salivary gland cancer;

(xv) Multiple myeloma;

(xvi) Posterior subcapsular cataracts;
(xvii) Non-malignant thyroid nodular
disease;

(xviii) Ovarian cancer;

(xix) Parathyroid adenoma;

(xx) Tumors of the brain and central
nervous system;

(xxi) Cancer of the rectum;

(xxii) Lymphomas other than Hodg-
Kin’'s disease;

(xxiii) Prostate cancer; and
(xxiv) Any other cancer.
(Authority: 38 U.S.C. 501)

(@) For purposes of paragraphs (a)(1)
and (b)(1) of this section, “radiogenic
disease” shall not include poly-
cythemia vera.

(4) If a claim is based on a disease
other than one of those listed in para-
graphs (b)(2) or (b)(3) of this section,
VA shall nevertheless consider the

38 CFR Ch. I (7-1-00 Edition)

claim under the provisions of this sec-
tion provided that the claimant has
cited or submitted competent scientific
or medical evidence that the claimed
condition is a radiogenic disease.

(6) For the pusposes of paragraph
(6) () of this section:

() Bone cancer must become mani-
fest within 30 years after exposure;

(ii) Leukemia may become manifest
at any time after exposure;

(iii) Posterior subcapsular cataracts
must become manifest 6 months or
more after exposure; and

(iv) Other diseases specified in para-
graph (b)(2) of this section must be-
come manifest 5 years or more after ex-
posure.

(Authority: 38 U.S.C. 501; Pub. L. 98-542)

(©) Review by Under Secretary for Bene-
fits. (1) When a claim is forwarded for
review pursuant to paragraph (b)(1) of
this section, the Under Secretary for
Benefits shall consider the claim with
reference to the factors specified in
paragraph (e) of this section and may
request an advisory medical opinion
from the Under Secretary for Health.

@) If after such consideration the
Under Secretary for Benefits is con-
vinced sound scientific and medical
evidence supports the conclusion it is
at least as likely as not the veteran's
disease resulted from exposure to radi-
ation in service, the Under Secretary
for Benefits shall so inform the re-
gional office of jurisdiction in writing.
The Under Secretary for Benefits shall
set forth the rationale for this conclu-
sion, including an evaluation of the
claim under the applicable factors
specified in paragraph (e) of this sec-
tion.

(ii) If the Under Secretary for Bene-
fits determines there is no reasonable
possibility that the veteran's disease
resulted from radiation exposure in
service, the Under Secretary for Bene-
fits shall so inform the regional office
of jurisidiction in writing, setting forth
the rationale for this conclusion.

(2) If the Under Secretary for Bene-
fits, after considering any opinion of
the Under Secretary for Health, is un-
able to conclude whether it is at least
as likely as not, or that there is no rea-
sonable possibility, the: veteran's dis-
ease resulted from radiation exposure
in service, the Under Secretary for

226

cue


Department of Veterans Affairs

(i) That a pensioner has 90 days from
the date the notice is mailed to the
pensioner to disaffirm a_ previous
electon by completing the disaffirma-
tion form and mailing it to the Depart-
ment of Veterans Affairs.

(ii) That a pensioner who disaffirms a
previous election shall receive, begin-
ning the calendar month after the cal-
endar month in which the Department
of Veterans Affairs receives the dis-
affirmation, the amount of pension
payable if improved pension had not
been elected.

iii) That a pensioner who disaffirms
a previous election may again elect im-
proved pension but without a right to
disaffirm the subsequent election.

(iv) That a pensioner who disaffirms
an election of improved pension shall
not be indebted to the United States
for the period in which the pensioner
received improved pension.

(Authority: Pub, L. 96-272, sec. 310; 94 Stat.
500)

{f) Notification to the Department of
Health and Human Services. The Depart-
ment of-Veterans Affairs shall prompt-
ly furnish the Department of Health
and Human Services the following in-
formation:

(1) The name and identifying infor-
mation of each pensioner who dis-
affirms his or her election of improved
pension.

(2) The name and identifying infor-
mation of each pensioner who fails to
disaffirm and election of improved pen-
sion within the 90-day period described
in paragraph (©) (4)(@) of this section.

The name and identifying infor-
mscion of each pensioner who after dis-
affirming his or her election of im-
proved pension, subsequently reelected
improved pension.

(Authority: 38 U.S.C. 501)
[46 FR 11661, Feb. 10, 1981]

§3.715. Radiation Exposure Compensa-
tion Act of 1990.

Payment to any individual under the
provisions of the Radiation Exposure
Compensation Act of 1990 (Pub. L. 101-
426 as amended by Public Law 101-510)
based upon disability or death result-
ing from a specific disease shall bar
payment, or further payment, of com-
pensation or dependency and indem-

§3.750

nity compensation to or on behalf of
that individual based upon disability or
death resulting from the same disease.

(Authority: 42 U.S.C. 2210 note)
{58 FR 25564, Apr. 27, 1993]

CROSS REFERENCE: See §3.500(x) for effec-
tive date of discontinuance.

RETIREMENT

$3,750 Retirement pay.

(a) General. Except as provided in
paragraphs (c) and (d) of this section
and §3.751, any person entitled to re-
ceive retirement pay based on service
as a member of the Armed Forces or as
a commissioned officer of the Public
Health Service, the Coast and Geodetic
Survey, the Environmental Science
Services Administration; or the Na-
tional Oceanic and Atmospheric Ad-
ministration may not receive such pay
concurrently with benefits payable
under laws administered by the Depart-
ment of Veterans Affairs. The term
“retirement pay” includes retired pay
and retainer pay.

(b) Election. A veteran entitled to re-
tirement pay or compensation may
elect which of the benefits he or she de-
sires to receive. An election of retire-
ment pay does not bar him or her from
making a subsequent election of the
other benefit to which he or she is enti-
tled. An election filed within 1 year
from the date of notification of Depart-
ment of Veterans Affairs entitlement
will be considered as ‘‘timely filed’ for
the purpose of §3.401(e)(1). If the vet-
eran is incompetent the I-year period
will begin on the date notification is
sent to the next friend or fiduciary. In
initial determinations, elections may
be applied retroactively if the claimant
was not advised of his or her right of
election and the effect thereof.

(c) Waiver. A person specified in para-
graph (@) of this section may receive
compensation upon filing with the
service department concerned a waiver
of so much of his (or her) retirement
pay as is equal in amount to the com-
pensation to which he (or she) is enti-
tled. In the absence of a specific state-
ment to the contrary, the filing of an

299


30 CFR

Department of Veterans Affairs

showing inception before or after serv-
ice.

(Authority: 38 U.S.C. 1113)

{26 FR 1581, Feb. 24, 1961, as amended at 35
FR 18281, Dec. 1, 1970; 39 FR 34530, Sept. 26,
1974; 43 FR 45347, Oct. 2, 1978; 47 FR 11655,
Mar. 18, 1982; 58 FR 29109, May 19, 1993; 59 FR
5106, Feb. 3, 1994; 59 FR 29724, June 9, 1994; 61
FR_ 57588, Nov 7, 1996; 62 FR 35422, July 1,
1997]

$3.308 Presumptive service connec-
tion; peacetime service before Janu-
ary 1, 1947,

(a) Chronic disease. There is no provi-
sion for presumptive service connec-
tion for chronic disease as distin-
guished from tropical diseases referred
to in paragraph (b) of this section
based on peacetime service before Jan-
uary 1, 1947.

(b) Tropical disease. In claims based
on peacetime service before January 1,
1947, a veteran of 6 months or more
service who contracts a tropical dis-
ease listed in §3.309(b) or a resultant
disorder or disease originating because
of therapy administered in connection
with a tropical disease or as a prevent-
ative, will be considered to have in-
curred such disability in service when
it is shown to exist to the degree of 10
percent or more within 1 year after
separation from active service, or at a
time when standard and accepted trea-
tises indicate that the incubation pe-
riod commenced during active service
unless shown by clear and unmistak-
able evidence not to have been of serv-
ice origin. The requirement of 6
months or more service means active,
continuous service, during one or more
enlistment periods.

(Authority: 38 U.S.C. 1133)
{39 FR 34530, Sept. 26, 1974]

§ 8.309» Disease: subject to presumptive
service connection.

(a) Chronic diseases. The following
diseases shall be granted service con-
nection although not otherwise estab-
lished as incurred in service if mani-
fested 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 rebut-

§3.309

table presumption provisions of §3.307
are also satisfied.

Anemia, primary.

Arteriosclerosis.

Arthritis.

Atrophy, progressive muscular.

Brain hemorrhage.

Brain thrombosis.

Bronchiectasls.

Calcull of the kidney, bladder, or gall-
bladder.

Cardiovascular-renal disease, includ-
ing hypertension. (This term applies to
combination involvement of the type
of arteriosclerosis, nephritis, and or-
ganic heart disease, and since hyper-
tension is an early symptom long pre-
ceding the development of those dis-
eases in their more obvious forms, a
disabling hypertension within the 1-
year period will be given the same ben-
efit 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.

Epllepsies.

Hansen's disease.

Hodgkin's disease.

Leukemia.

Lupus erythematosus, systemic.

Myasthenta gravis.

Myelitis.

Myocarditis,

Nephritis.

Other organic diseases of the nervous sys-
tem.

Osteitis deformans (Paget's disease).

Osteomalacia.

Palsy, bulbar.

Paralysis agitans.

Psychoses.

Purpura idiopathic, hemorrhagic.

Raynaud's disease.

Sarcoldosis.

Scleroderma.

Sclerosis, amyotrophic lateral.

Sclerosis, multiple.

‘Syringomyelia.
Thrombosngiltis obliterans (Buerger’s dis-

ease).

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 (pep-
tic ulcer) is to be considered established if
it represents a medically sound interpreta-
tion of sufficient clinical findings war-
ranting such diagnosis and provides an

221


Department of Veterans Affairs

Benefits shall refer the matter to an
outside consultant in accordance with
paragraph (d) of this section.

(3) For purposes of paragraph (c)(I) of
this section, “sound scientific evi-
dence” means observations, findings,
or conclusions which are statistically
and epidemiologically valid, are statis-
tically significant, are capable of rep-
lication, and withstand peer review,
and “sound medical evidence" means
observations, findings, or conclusions
which are consistent with current med-
ical knowledge and are so reasonable
and logical as to serve as the basis of
management of a medical condition.

(d) Referral to outside consultants. (1)
Referrals pursuant to paragraph (c) of
this section shall be to consultants se-
lected by the Under Secretary for
Health from outside VA, upon the rec-
ommendation of the Director of the
National Cancer Institute. The consult-
ant will be asked to evaluate the claim
and provide an opinion as to the likeli-
hood the disease is a result of exposure
as claimed.

(2) The request for opinion shall be in
writing and shall include a description

of:

(i) The disease, including the specific
cell type and stage, if known, and when
the disease first became manifest;

Gi) The circumstances, including
date, of the veteran's exposure;

(iii) The veteran's age, gender, and
pertinent family history;

(iv) The veteran's history of exposure
to known carcinogens, occupationally
or otherwise;

(v) Evidence of any other effects radi-
ation exposure may have had on the
veteran; and

(vi) Any other information relevant

to determination of causation of the
veteran's disease.
The Under Secretary for Benefits shall
forward, with the request. copies of
pertinent medical records and, where
available, dose assessments from offi-
cial sources, from credible sources as
defined in paragraph (a)(3)(ii) of this
section, and from an independent ex-
pert pursuant to paragraph (a)(3) of
this section,

(3) The consultant shall evaluate the
claim under the factors specified in
paragraph (€) of this section and re-
spond in writing, stating whether it is

§3.311

either Hkely, unlikely, or approxi-
mately as likely as not the veteran's
disease resulted from exposure to ion-
izing radiation in service. The response
shall set forth the rationale for the
consultant's conclusion, including the
consultant’s evaluation under the ap-
plicable factors specified in paragraph
(e) of this section. The Under Secretary
for Benefits shall review the consult-
ant’s response and transmit it with any
comments to the regional office of ju-
risdiction for use in adjudication of the
claim.

(e) Factors for consideration. Factors
to be considered in determining wheth-
er a veteran's disease resulted from ex-
posure to ionizing radiation in-service
include:

(Q) The probable dose, in terms of
dose type, rate and duration as a factor
in inducing the disease, taking into ac-
count any known limitations in the do-
simetry devices employed in its meas-
urement or the methodologies em-
ployed in its estimation;

(2) The relative sensitivity of the in-
volved tissue to induction, by ionizing
radiation, of the specific pathology:

(3) The veteran's gender and perti-
nent family history:

(4) The veteran's age at time of expo-
sure:

(3) The time-lapse between exposure
and onset of the disease; and

(6) The extent to which exposure to
radiation, or other carcinogens, outside
of service may have contributed to de-
velopment of the disease.

(f) Adjudication of claim. The deter-
mination of service connection will be
made under the generally applicable
provisions of this part, giving due con-
sideration to all evidence of record, in-
cluding any opinion provided by the
Under Secretary for Health or an out-
side consultant, and to the evaluations
published pursuant to §1.37 of this
title: With regard to any issue material
to consideration of a claim, the provi-
sions of §3.102 of this title apply.

(Q) Willful misconduct and supervening
cause. In no case will service connec-
tion be established if the disease is due
to the veteran's own willful mis-
conduct, or if there is affirmative evi-
dence to establish that a supervening,

227


§3.309

adequate basis for a differential diagnosis
from other conditions with like symptoma-
tology; in short, where the preponderance
of evidence indicates gastric or duodenal
ulcer (peptic ulcer). Whenever possible, of
course, laboratory findings should be used
tn corroboration of the clinical data.

(o) Tropical diseases. The following
diseases shall be granted service con-
nection as a result of tropical service,
although not otherwise established as
incurred in service if manifested to a
compensable degree within the applica-
ble 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.
Lolasis.

Malarla.
‘Onchocerciasis.
Oroya fever.
Pinta.

Plague.
Schistosomiasis.
Yaws.

Yellow fever.

Resultant disorders or diseases originating
because of therapy administered in connec-
tion with such diseases or as a preventative
thereof.

(c) Diseases specific as to former pris-
oners of war. If a veteran is: (I) 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 ac-
tive military, naval, or air service even
though there is no record of such dis-
ease during service, provided the rebut-
table presumption provisions of §3.307
are also satisfied.

Avitaminosts.

Beribert (including beriberi heart disease).

Chronic dysentery.

Helminthiasis.

Malnutrition (including optic atrophy asso-
ciated with malnutrition).

Pellagra.

Any other nutritional deficiency.

Psychosis.

Any of the anxiety states.

38 CFR Ch. | (7-1-00 Edition)

Dysthymic disorder (or depressive neurosis).
lysthymi P!

Organic residuals of frostbite, if it is
determined that the veteran was in-
terned in climatic conditions con-
sistent with the occurrence of frost-
bite.

Post-traumatic osteoarthritis.

Irritable bowel syndrome.

Peptic ulcer disease.

Peripheral neuropathy except where directly
related to infectious causes.

Nore: 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 cap-
tivity,

(Authority: 38U.S.C. 1112)

(@ Diseases specific to radiation-ex-
veterans. (1) The diseases listed in
paragraph (d)(2) of this section shall be
service-connected if they become mani-
fest in.a radiation-exposed veteran as
defined in paragraph (d)(3) of this sec-
tion, provided the rebuttable presump:
tion provisions of §3.307 of this part are
also satisfied.

(2) The diseases referred to in para-
graph (d)(1) of this section are the fol-
Towing: .

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

(ii) Cancer of the thyroid.

(ii) 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.

() 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.

Note: For the purposes of this section, the
term “urinary tract” means the kidneys,
renal pelves, ureters, urinary bladder, and
urethra.

(3) For purposes of this section:
> (i) The term radiation-exposed veteran
means either a veteran who while serv-
ing on active duty, or an individual
who while a member of a reserve com-
ponent of the Armed Forces during a

222

4

a

%,

oe


Department of Veterans Affairs

period of active duty for training or in-
active duty training, participated in a
radiation-risk activity.

(ii) The term radiation-risk activity
means:

(A) Onsite participation in a test in-
volving 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.

(©) Internment as a prisoner of war
in Japan (or service on active duty in
Japan immediately following such in-
ternment) during World War I] 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.

(iii) The term atmospheric detonation
includes underwater nuclear detona-
tions.

(iv) The term onsite participation
means:

(A) During the official operational
period of an atmospheric nuclear test,
presence at the test site, or perform-
ance of official military duties in con-
nection with ships, aircraft or other
equipment used in direct support of the
nuclear test.

(B) During the six month period fol-
lowing the official operational period
of an atmospheric nuclear test, pres-
ence at the test site or other test stag-
ing area to perform official military
duties in connection with completion
of projects related to the nuclear test
including decontamination of equip-
ment used during the nuclear test.

(©) Service as a member of the garri-
son 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 par-
ticipated in Operation Crossroads.

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

§3.309

(A) For Operation TRINITY the pe-
riod July 16, 1945 through August 6,
1945.

(B) For Operation CROSSROADS the
period July I, 1946 through August 31,
1946.

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

{D) For Operation RANGER the pe-
riod January 27, 1951 through February
6, 1951.

(£) For Operation GREENHOUSE the
period April 8 1951 through June 20,
1951.

(F) For Operation BUSTER-JANGLE
the period October 22, 1951 through De-
cember 20, 1951.

(G) For Operation TUMBLER-SNAP-
PER the period April 1, 1952 through
June 20, 1952.

(H) For Operation IVY the period No-
vember J, 1952 through December 31,
1952.

@) For Operation UPSHOT-KNOT-
HOLE 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 pe-
riod May 14, 1955 through May 15, 1955.

(M) For Operation REDWING the pe-
riod May 5, 1956 through August 6, 1956.

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

(0) For Operation HARDTACK I the
period April 28, 1958 through October
31, 1958,

) For Operation ARGUS the period
August 27, 1958 through September 10,
1958.

(Q) For Operation HARDTACK II the

od September 19, 1958 through Oc-
tober 31, 1958,

(R) For Operation DOMINIC I the pe-
riod April 25, 1962 through December 31.
1962.

(S) For Operation DOMINIC II/PLOW-
SHARE the period July 6, 1962 through
August 15, 1962.

(vi) The term “occupation of Hiro-
shima 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

223