Legal VA claims that the VA does not widely-advertise or fully-disclose
ADDICTION TO ALCOHOL, ADDICTION TO LEGAL AND ILLEGAL DRUGS, CONTRACTION OF VENERAL
DISEASE, AND SUICIDE OF A VETERAN
Can make Veterans or their surviving Dependents Eligible for Service-Connected Disability Compensation and
Dependent Indemnity Compensation (DIC).
Part 1:
CURRENT RULES CONCERNING SERVICE-CONNECTED DISABILITY AND
DIC CLAIMS INVOLVING“ALCOHOLISM”
AND “DRUG ADDICTION
The Omnibus Budget Reconciliation Act of 1990 (OBRA 1990) erected a partial bar to benefits where “alcoholism”
or a “drug abuse” disability is involved. For claims filed after October 31, 1990, OBRA 1990 provides that an
injury or disease that are a result of alcohol or drugs is not considered to have occurred in the “line of duty”…
OBRA 1990 also specifies that the VA may not pay compensation for disabilities that are “a result the
person’s own abuse of alcohol or drugs is not considered to have occurred in the line of duty.
HOWEVER, the Federal Circuit decision in Allen v. Principi interpreted
OBRA 1990 differently, and in a more liberal manner, than prior VA and Court of Appeals for Veterans Claims (CAVC) interpretations
of the same law, and therefore, VA documents that use the more narrow interpretation of OBRA1990 are now “invalidated”
by the Allen decision have not yet been formally rescinded.
For VA claims purposes, there are 3 possible categories of disabilities involving alcohol or drug abuse. (Pay
particular attention to the difference between “PRIMARY” and “SECONDARY” DISABILITES):
(1) The first category is PRIMARY
alcoholism or drug abuse disability that develops during service. PRIMARY refers to an alcohol or drug abuse disability that
arose during service from voluntary and willful abuse of alcohol or drugs. OBRA 1990 bars an award of service connection for
the “primary” disability of alcoholism or drug addiction. OBRA 1990 also restricts the payment of compensation
for secondary disabilities, such as cirrhosis of the liver, that result from PRIMARY alcohol or drug abuse disability…
(2) The second category is alcoholism
or drug abuse disability that develops SECONDARY to a service-connected condition. OBRA 1990 DOES NOT RESTRICT service connection
and the payment of disability compensation for these disabilities. When alcoholism or drug abuse disability is determined
to be SECONDARY to, that is, caused by or aggravated by, a service-connected disability under 38 CFR SECTION 3.310(A), SECONDARY
SERVICE CONNECTION MAY BE GRANTED and disability compensation may be paid for the alcoholism or drug abuse disability.
ESTABLISHING SERVICE CONNECTION FOR AN ALCOHOL OR DRUG ABUSE DISABILITY ON A SECONDARY BASIS IS
IMPORTANT BECAUSE ELIGIBILITY FOR SEVERAL OTHER VA BENEFITS, GENERALLY CALLED “ANCILLARY” BENEFITS MIGHT FOLLOW,
AND COULD SIGNIFICANTLY AFFECT THEBENEFITS ULTIMATELY DUE VETERANS AND THEIR DEPENDENTS. For example, Veterans discharged
or released for “alcohol or drug abuse after September 15, 1940, who previously were not eligible for VA Housing Loan
Benefits, are GRANTED SECONDARY SERVICE CONNECTION FOR ALCHOLISM OR DRUG ABUSE, could now become eligible for this Benefit…
Perhaps
even more important, significant benefits may accrue to any surviving eligible dependents after secondary service connection
for alcoholism or drug addiction is awarded. Survivors may be entitled to Educational Assistance under Chapter 35 if the Veteran
dies of the secondarily service-connected alcoholism or drug abuse, or from a disability resulting from the secondarily service-connected
alcoholism or drug abuse. Also, eligible surviving dependents may be eligible for DIC and burial benefits based on a Veterans’
death from alcoholism or drug abuse that has been determined secondarily service connected. Survivors may also be entitled
to DIC based on the Veteran’s death if the Veteran was in receipt of or entitle to receive compensation for alcoholism
or drug abuse disability SECONDARY to a service-connected condition, if continuously rated totally disabling for the period
required by 38 U.S.C.S. Section 1318. Other “ANCILLARY” Benefits that dependents may become eligible for due to
SECONDARILY service-connected alcohol or drug abuse disability are accrued benefits, surviving spouses’ Loan Guarantee
Benefits, Special Allowance under 38CFR Section 3.805, and Medical Care under CHAMPVA…
(3) The third category includes disabilities that RESULT FROM or are AGGRAVATED BY, the
SECONDARILY SERVICE-CONNECTED ALCOHOLISM or DRUG ABUSE DISABILITY. If service connection is granted for alcoholism or drug
abuse on a SECONDARY basis because it was caused or aggravated by a service-connected condition, then any disability SECONDARY
to the alcoholism MAY ALSO BE AWARDED SERVICE CONNECTION and COMPENSATION PAID for the conditions that are SECONDARY to the
SECONDARILY SERVICE-CONNECTED “ALCOHLISM” or “DRUG ADDICTION.” For example, if a Veteran suffers from
alcoholism SECONDARY to his PTSD were to develop CIRRHOSIS OF THE LIVER due to his ALCHOLISM, the Veteran should be able to
receive SERVICE CONNECTION and the PAYMENT OF DISABILITY COMPENSATION for the CIRRHOSIS as a SECONDARY SERVICE-CONNECTED DISABILITY.
And as noted above, the Veteran may achieve eligibility for other VA benefits, and any survivors could be entitled to certain
benefits, should the Veteran die as a result of the CIRRHOSIS…
ADVOCACY TIP: Many claims for secondary service connection and payment of compensation for alcoholism
and drug abuse disability were denied during the 1990’s under the VA’s and the CAVC’s ERRONEOUS, RESTRICTIVE
INTERPRETAITON of OBRA 1990. Or the VA may have DENIED AN INCREASED RATING for an ALREADY SERVICE-CONNECTED CONDITION and
REFUSED TO CONSIDER the impact on the Veteran of alcoholism or drug abuse that resulted from or was aggravated by the service-connected
condition. For the most part, the decisions based upon a too-restrictive interpretation of OBRA 1990 were issued between November
1990 and February 2001. Claimants previously denied service connection, payment of compensation, or an increased rating due
to an INCORRECT INTERPRETATION of OBRA 1990 may have several options. First, the claimant may argue that new and material
evidence is not needed to reopen the claim because the FEDERAL CIRICUT COURT’S CHANGE IN INTERPRETATION of OBRA 1990
a SUBSTANTIVELY EFFECTS THE NATURE OF THE CLAIM so that the NEW CLAIM IS DIFFERENT and DISTINCT
from the claim previously denied. IT IS LIKELY THAT THIS ARGUMENT WOULD BE SUCCESSFUL...
Second, if the claimant submits new and material evidence to reopen, the previously denied claim could be reopened and
decided under the Federal Circuit’s less restrictive interpretation of OBRA 1990. However, the claimant would have to
develop and submit new and material evidence in order to reopen, and it is UNLIKELY THAT A CHANGE IN THE INTERPRETAION OF
A LAW, BY ITSELF, WOULD BE CONSIDERED NEW AND MATERIAL EVIDENCE TO REOPEN.
Third, the claimant could argue that the VA’s PRIOR TO DENIAL based upon MISINTERPRETATION of OBRA 1990 was CLEAR
& UNMISTAKABLE ERROR. The Authors of the VETERANS BENEFITS MANUAL from which the vast majority
of the above information is based upon, ARE NOT OPITIMISITC ABOUT THE SUCCESS OF THIS THIRD OPTION...
RULES PERTAINING TO CLAIMS FILED
ON OR PRIOR TO OCTOBER 31,1990
For claims filed on or before October 31, 1990, DIRECT SERVICE-CONNECTION for the PRIMARY DISABILITIES of ALCOHOLISM and
DRUG ADDICTION was GENERALYY DENIED because such behavior was viewed as WILLFUL MISCONDUCT. HOWEVER, prior to the passage
of OBRA 1990 VETERANS SUFFERING from alcoholism and drug addiction QUALIFIED FOR BENEFITS because the bar to the benefits
resulting from willful misconduct was not interpreted to apply to condition that RESULTED FROM, or SECONDARY TO, alcoholism
or drug addiction.
Any Veteran who, under the laws in effect on or prior to October 31, 1990, received service-connection for an alcoholism
or drug addiction-related condition should be treated the same as any other Veteran with a service connected or SECONDARILY
service-connected condition. This means that they may receive annual cost-of-living adjustments that would be effective without
the filing of a claim; they may receive increased compensation based on the recent acquisition of a dependent; and they may
receive increased compensation based on an increase in disability level.
Also, an eligible dependent survivor of a deceased Veteran who was in receipt of compensation for a substance-abuse disability
SECONDARILY RELATED TO SERVICE, and who files for DIC after October 31, 1990, should have basic eligibility to DIC and other
“ANCILLARY BENEFITS” pursuant to 38 CFR Section 3.805 including medical care under CHAMPVA mentioned earlier in
this Article…
PLEASE DULY NOTE THAT due to the enormous amount of information that needs to be digested by Veterans
and/or their Dependents and/or other Family Members, claims for CONTRACTION OF VENERAL DISEASE, AND SUICIDE
OF A VETERAN, and other related information, will be presented one-part at a time…
