Line of Duty

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AF03

Line of Duty

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend

its adjudication regulations concerning the service connection of

disabilities incurred or aggravated in line of duty. This proposed

change is necessary to implement legislation which precludes the

establishment of service connection for any condition that results from

the abuse of alcohol or drugs.

DATES: Comments must be received on or before May 2, 1994. Comments

will be available for public inspection until May 10, 1994. This

proposed change is proposed to be effective November 1, 1990, the date

established by the enacting legislation.

ADDRESSES: Interested persons are invited to submit written comments,

suggestions, or objections regarding this change to Secretary of

Veterans Affairs (271A), Department of Veterans Affairs, 810 Vermont

Avenue, NW., Washington, DC 20420. All written comments received will

be available for public inspection only in the Veterans Services Unit,

room 170, at the above address between the hours of 8 a.m. and 4:30

p.m., Monday through Friday (except holidays), until May 10, 1994.

FOR FURTHER INFORMATION CONTACT: John Bisset, Jr. Consultant,

Regulations Staff, Compensation and Pension Service, Veterans Benefits

Administration, (202) 233-3005.

SUPPLEMENTARY INFORMATION: Section 8052 of the Omnibus Budget

Reconciliation Act of 1990, Pub. L. 101-508, amended 38 U.S.C. 105(a),

1110 and 1131 to provide that injuries or diseases incurred or

aggravated during service as a result of the abuse of alcohol or drugs

will not be considered incurred or aggravated in the line of duty and

thus would not be compensable by VA as service-connected disabilities.

These provisions apply to claims filed after October 31, 1990. VA

proposes to define drug abuse as the use of illegal drugs (including

prescription drugs that are illegally or illicitly obtained), the

intentional use of prescription or non-prescription drugs for a purpose

other than the medically intended use, or the use of substances other

than alcohol to enjoy their intoxicating effects. VA proposes to define

alcohol abuse as the drinking of alcoholic beverages in any amount,

over any period of time, sufficient to cause disability or death. VA

proposes to amend 38 CFR 3.1 and 3.301 to implement this new statutory

provision.

The Secretary hereby certifies that this regulatory amendment will

not have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act (RFA), 5

U.S.C. 601-612. The reason for this certification is that this

amendment would not directly affect any small entities. Only VA

beneficiaries could be directly affected. Therefore, pursuant to 5

U.S.C. 605(b), this amendment is exempt from the initial and final

regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program number is

64.109.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Handicapped, Health

care, Pensions, Veterans.

Approved: December 22, 1993.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 3 is proposed

to be amended as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity

Compensation

1. The authority citation for part 3, subpart A, continues to read

as follows:

Authority: 38 U.S.C. 501(a), unless otherwise noted.

Sec. 3.1 [Amended].

2. In Sec. 3.1(m) introductory text, the first sentence, after the

words ``willful misconduct'' add the words ``or abuse of alcohol or

drugs''.

Sec. 3.301 [Amended].

3. In Sec. 3.301(a), after the words ``willful misconduct'' add the

words ``or abuse of alcohol or drugs''.

4. In Sec. 3.301(c), the heading of the introductory text, after

the word ``applications'' add the words ``; willful misconduct''.

5. In Sec. 3.301(c)(3), after the third sentence, add the words

``(See paragraph (d) of this section regarding service connection where

disability or death is a result of abuse of drugs.)''. In the fourth

sentence, remove the words ``Similarly, where'' and add, in their

place, the word ``Where''.

6. In Sec. 3.301, add a new paragraph (d) to read as follows:

Sec. 3.301 Line of duty and misconduct.

* * * * *

(d) Line of duty; abuse of alcohol or drugs. An injury or disease

incurred during active military, naval, or air service shall not be

deemed to have been incurred in line of duty if such injury or disease

was a result of the abuse of alcohol or drugs. For the purpose of this

paragraph, alcohol abuse means the drinking of alcoholic beverages in

any amount, over any period of time, sufficient to cause disability or

death; drug abuse means the use of illegal drugs (including

prescription drugs that are illegally or illicitly obtained), the

intentional use of prescription or non-prescription drugs for a purpose

other than the medically intended use, or the use of substances other

than alcohol to enjoy their intoxicating effects.

(Authority: 38 U.S.C. 105(a))

[FR Doc. 94-4479 Filed 2-28-94; 8:45 am]

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