[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR3.307]

[Page 235-237]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 3--ADJUDICATION--Table of Contents
 
     Subpart A--Pension, Compensation, and Dependency and Indemnity 
                              Compensation
 
Sec. 3.307  Presumptive service connection for chronic, tropical or 
prisoner-of-war related disease, or disease associated with exposure 
to certain herbicide 
          agents; wartime and service on or after January 1, 1947.

    (a) General. A chronic, tropical, prisoner of war related disease, 
or a disease associated with exposure to certain herbicide agents listed 
in Sec. 3.309 will be considered to have been incurred in or aggravated 
by service under the circumstances outlined in this section even though 
there is no evidence of

[[Page 236]]

such disease during the period of service. No condition other than one 
listed in Sec. 3.309(a) will be considered chronic.
    (1) Service. The veteran must have served 90 days or more during a 
war period or after December 31, 1946. The requirement of 90 days' 
service means active, continuous service within or extending into or 
beyond a war period, or which began before and extended beyond December 
31, 1946, or began after that date. Any period of service is sufficient 
for the purpose of establishing the presumptive service connection of a 
specified disease under the conditions listed in Sec. 3.309(c) and (e).
    (2) Separation from service. For the purpose of paragraph (a)(3) and 
(4) of this section the date of separation from wartime service will be 
the date of discharge or release during a war period, or if service 
continued after the war, the end of the war period. In claims based on 
service on or after January 1, 1947, the date of separation will be the 
date of discharge or release from the period of service on which the 
claim is based.
    (3) Chronic disease. The disease must have become manifest to a 
degree of 10 percent or more within 1 year (for Hansen's disease 
(leprosy) and tuberculosis, within 3 years; multiple sclerosis, within 7 
years) from the date of separation from service as specified in 
paragraph (a)(2) of this section.
    (4) Tropical disease. The disease must have become manifest to a 
degree of 10 percent or more within 1 year from date of separation from 
service as specified in paragraph (a)(2) of this section, or at a time 
when standard accepted treatises indicate that the incubation period 
commenced during such service. The resultant disorders or diseases 
originating because of therapy administered in connection with a 
tropical disease or as a preventative may also be service connected.


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

    (5) Diseases specific as to former prisoners of war. The diseases 
listed in Sec. 3.309(c) shall have become manifest to a degree of 10 
percent or more at any time after discharge or release from active 
service.


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

    (6) Diseases associated with exposure to certain herbicide agents. 
(i) For the purposes of this section, the term ``herbicide agent'' means 
a chemical in an herbicide used in support of the United States and 
allied military operations in the Republic of Vietnam during the period 
beginning on January 9, 1962, and ending on May 7, 1975, specifically: 
2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.


(Authority: 38 U.S.C. 1116(a)(4))

    (ii) The diseases listed at Sec. 3.309(e) shall have become manifest 
to a degree of 10 percent or more at any time after service, except that 
chloracne or other acneform disease consistent with chloracne, porphyria 
cutanea tarda, and acute and subacute peripheral neuropathy shall have 
become manifest to a degree of 10 percent or more within a year after 
the last date on which the veteran was exposed to an herbicide agent 
during active military, naval, or air service.
    (iii) A veteran who, during active military, naval, or air service, 
served in the Republic of Vietnam during the period beginning on January 
9, 1962, and ending on May 7, 1975, shall be presumed to have been 
exposed during such service to an herbicide agent, unless there is 
affirmative evidence to establish that the veteran was not exposed to 
any such agent during that service. The last date on which such a 
veteran shall be presumed to have been exposed to an herbicide agent 
shall be the last date on which he or she served in the Republic of 
Vietnam during the period beginning on January 9, 1962, and ending on 
May 7, 1975. ``Service in the Republic of Vietnam'' includes service in 
the waters offshore and service in other locations if the conditions of 
service involved duty or visitation in the Republic of Vietnam.


(Authority: 38 U.S.C. 501(a) and 1116(a)(3))

    (b) Evidentiary basis. The factual basis may be established by 
medical evidence, competent lay evidence or both. Medical evidence 
should set forth the physical findings and symptomatology elicited by 
examination within the applicable period. Lay evidence should describe 
the material and relevant

[[Page 237]]

facts as to the veteran's disability observed within such period, not 
merely conclusions based upon opinion. The chronicity and continuity 
factors outlined in Sec. 3.303(b) will be considered. The diseases 
listed in Sec. 3.309(a) will be accepted as chronic, even though 
diagnosed as acute because of insidious inception and chronic 
development, except: (1) Where they result from intercurrent causes, for 
example, cerebral hemorrhage due to injury, or active nephritis or acute 
endocarditis due to intercurrent infection (with or without 
identification of the pathogenic micro-organism); or (2) where a disease 
is the result of drug ingestion or a complication of some other 
condition not related to service. Thus, leukemia will be accepted as a 
chronic disease whether diagnosed as acute or chronic. Unless the 
clinical picture is clear otherwise, consideration will be given as to 
whether an acute condition is an exacerbation of a chronic disease.


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

    (c) Prohibition of certain presumptions. No presumptions may be 
invoked on the basis of advancement of the disease when first definitely 
diagnosed for the purpose of showing its existence to a degree of 10 
percent within the applicable period. This will not be interpreted as 
requiring that the disease be diagnosed in the presumptive period, but 
only that there be then shown by acceptable medical or lay evidence 
characteristic manifestations of the disease to the required degree, 
followed without unreasonable time lapse by definite diagnosis. 
Symptomatology shown in the prescribed period may have no particular 
significance when first observed, but in the light of subsequent 
developments it may gain considerable significance. Cases in which a 
chronic condition is shown to exist within a short time following the 
applicable presumptive period, but without evidence of manifestations 
within the period, should be developed to determine whether there was 
symptomatology which in retrospect may be identified and evaluated as 
manifestation of the chronic disease to the required 10-percent degree.
    (d) Rebuttal of service incurrence or aggravation. (1) Evidence 
which may be considered in rebuttal of service incurrence of a disease 
listed in Sec. 3.309 will be any evidence of a nature usually accepted 
as competent to indicate the time of existence or inception of disease, 
and medical judgment will be exercised in making determinations relative 
to the effect of intercurrent injury or disease. The expression 
``affirmative evidence to the contrary'' will not be taken to require a 
conclusive showing, but such showing as would, in sound medical 
reasoning and in the consideration of all evidence of record, support a 
conclusion that the disease was not incurred in service. As to tropical 
diseases the fact that the veteran had no service in a locality having a 
high incidence of the disease may be considered as evidence to rebut the 
presumption, as may residence during the period in question in a region 
where the particular disease is endemic. The known incubation periods of 
tropical diseases should be used as a factor in rebuttal of presumptive 
service connection as showing inception before or after service.
    (2) The presumption of aggravation provided in this section may be 
rebutted by affirmative evidence that the preexisting condition was not 
aggravated by service, which may include affirmative evidence that any 
increase in disability was due to an intercurrent disease or injury 
suffered after separation from service or evidence sufficient, under 
Sec. 3.306 of this part, to show that the increase in disability was due 
to the natural progress of the preexisting condition.

(Authority: 38 U.S.C 1113 and 1153)

[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; 67 FR 67793, Nov. 7, 2002; 68 FR 34541, June 10, 2003]