Section 101.40  Provisions Applicable to the Death of a Veteran or His/Her Total Disability

The following provisions are applicable to the death of a veteran or his/her total disability as incurred in or aggravated by active service as determined by the Veterans Administration or Department of Defense:

a)         In claims based on service during a war period, the criteria for determining service connection, either direct or presumptive disability, shall be allowed.

b)         Claims based on service during an induction period, the standards and criteria for determining service connection based on peacetime service are applicable where the disease or injury directly resulted from armed conflict or was directly incurred while engaged in extra-hazardous service including service under conditions simulating war.

c)         Except as provided in Paragraph (b) above, in claims based on service during an induction period, the cause of disability or the cause of death, either primary or contributory, must have resulted directly from and the causative factor must have been the performance of such service while on duty status.  This criterion is met if the disease or injury flowed from the performance of duty while under military order or direction regardless of the fact that such duty may have risks no greater than those of civilian life.  It must be shown that it is reasonable to expect that the disease or injury would not have been incurred if the individual had not been performing active service.

d)         Entitlement may exist on the basis of a rating made where the veteran is not in receipt of disability compensation because of the receipt of retirement pay or other benefits from the service department.

e)         A service-connected disability rated at 100% by the Veterans Administration and continuing for two consecutive years will be considered as permanent for the purpose of this Act, and benefits shall continue to be paid as long as the 100% disability and the child's eligibility continue.

f)          The following conditions will be considered as permanent and totally disabling without further consideration: permanent loss of or the loss of use of both feet or both hands, or both eyes, or one hand and one foot, or of one foot and one eye, or of one hand and one eye, or the total loss of hearing in both ears, or the organic loss of speech.

g)         Eligibility based on service during an induction period will be established if the disability meets the requirements for service connection and the disease or injury was incurred or aggravated while the veteran was on duty status and was directly related to the performance of his assigned duties. Assigned duties would include routine military duties as well as activities performed on specific orders or directions.