Line of Duty

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AF03

Line of Duty

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA)

adjudication regulations concerning service connection for disabilities

incurred or aggravated in line of duty. This amendment is necessary to

implement legislation which precludes the establishment of service

connection for any condition that results from the abuse of alcohol or

drugs by the person on whose service benefits are claimed.

EFFECTIVE DATE: November 1, 1990.

FOR FURTHER INFORMATION CONTACT: Lorna Weston, Consultant, Regulations

Staff, Compensation and Pension Service, Veterans Benefits

Administration, Department of Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420, (202) 273-7210.

[[Page 27408]] SUPPLEMENTARY INFORMATION: Section 8052 of the Omnibus

Budget Reconciliation Act of 1990 (OBRA 1990), Pub. L. 101-508, amended

38 U.S.C. 105(a), 110 (recodified as 1110) and 331 (recodified as 1131)

to provide that injuries or diseases resulting from the abuse of

alcohol or drugs by the person on whose service benefits are claimed

will not be considered incurred in line of duty and thus are not

compensable by VA as service-connected disabilities.

On March 1, 1994, VA published a proposal in the Federal Register

(59 FR 9719) to amend its adjudication regulations at 38 CFR 3.1 and

3.301 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 line of duty for purposes of

service connection. Interested persons were invited to submit written

comments, suggestions or objections on or before May 2, 1994. We

received two comments: One from the Disabled American Veterans and one

from a concerned individual.

One commenter expressed agreement with the amendment as proposed

and suggested no changes.

The other commenter recommended that VA include within the body of

the regulations the statutory direction that the amendments apply only

to claims filed after October 31, 1990. We concur with that

recommendation and have added appropriate language to the regulations

at 38 CFR 3.1(m) and 3.301(a).

The same commenter noted that the Veterans Benefits Administration

Manual M 21-1 and VBA Circular 21-90-12 provide that alcohol- or drug-

related disabilities will be considered service-connected if alcohol

abuse is a manifestation of a service-connected disability such as post

traumatic stress disorder, or if drug abuse arose out of therapy for a

service-connected disability. He stated that these are substantive

rules that should be included in the amendment to Sec. 3.301.

The manual and circular provisions which the commenter cited are

examples of the application of 38 CFR 3.310(a), which provides that

disability that is proximately due to or the result of a service-

connected disease or injury shall be service-connected and that when

service connection is thus established for a secondary condition the

secondary condition shall be considered a part of the original

condition. In circumstances such as those raised by the commenter, VA

is required by Sec. 3.310(a) to consider conditions that it has

determined are secondary to a service-connected condition to be part of

that service-connected condition rather than a result of the abuse of

alcohol or drugs. Since that requirement is established elsewhere in

VA's regulations, it is unnecessary to incorporate those provisions

into Sec. 3.301.

The same commenter, citing the Diagnostic and Statistical Manual of

Mental Disorders (Third Edition--Revised, 1987), (DSM-III-R), published

by the American Psychiatric Association, stated that, at the time

Congress enacted OBRA 1990, alcohol abuse had an established

definition. The commenter implied that this definition was so well

established as to constitute the meaning Congress intended when it

enacted OBRA 1990, and suggested that, to the extent that VA's

definition of alcohol abuse is inconsistent with the established

definition, VA's definition exceeds the authority of the Secretary of

Veterans Affairs to promulgate regulations. The commenter suggested

that the definitions of alcohol abuse and drug abuse in DSM-III-R be

adopted by VA.

While the DSM-III-R definitions may have been widely accepted in

the medical community, they were intended for diagnostic and

statistical purposes. There is no evidence to suggest that Congress had

these diagnostic criteria in mind at the time OBRA 1990 was enacted.

Rather, Congress clearly intended that no service-connected benefits

would be granted for disability or death resulting from drug or alcohol

abuse, whether from pathology due to long-term use, or from traumatic

effects related to acute intoxication.

Nevertheless, we have further considered the meaning of the terms

alcohol abuse and drug abuse in OBRA 1990. Congress did not define

either term in OBRA 1990, and the legislative history does not indicate

that Congress intended the terms to mean anything other than their

commonly understood meanings. Therefore, we have concluded that

Congress intended these terms to have their ordinary, contemporary,

common meanings. We think that the definition of drug abuse in the

proposed rule accurately reflects Congress' intent and, accordingly,

have adopted the proposed definition in the final rule. However, we

think that the definition of alcohol abuse in the proposed rule does

not accurately reflect Congress' intent, since that definition differs

from the common meaning. Therefore, we have changed the definition of

alcohol abuse in the final rule to more accurately reflect the meaning

we think Congress intended, i.e., ``the use of alcoholic beverages over

time, or such excessive use at any one time, sufficient to cause

disability to or death of the user.'' Under these circumstances, the

definition of alcohol abuse constitutes an interpretative rule and need

not be published as a proposed rule for notice and comment.

VA appreciates the comments submitted in response to the proposed

rule which is now adopted with the changes noted above.

The Secretary hereby certifies that this final rule will not have a

significant economic impact on a substantial number of small entities

as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-

612. This amendment will directly affect VA beneficiaries, but will not

directly affect small business. Therefore, pursuant to 5 U.S.C. 605(b),

this final rule is exempt from the initial and final regulatory

flexibility analyses requirements of sections 603 and 604.

This regulatory action has been reviewed by the Office of

Management and Budget under Executive Order 12866.

(The Catalog of Federal Domestic Assistance program number is

64.109).

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Health care,

Individuals with disabilities, Pensions, Veterans.

Approved: May 12, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 3 is 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), in the first sentence, remove the period at the

end of the sentence and insert, in its place, ``or, for claims filed

after October 31, 1990, was a result of his or her abuse of alcohol or

drugs.''

Sec. 3.301 [Amended]

3. In Sec. 3.301(a), at the end of the paragraph, remove the period

and insert, in its place, ``or, for claims filed after October 31,

1990, the result of his or her abuse of alcohol or

drugs.'' [[Page 27409]]

4. In Sec. 3.301(c), revise the heading to read as follows:

``Specific applications; willful misconduct.''

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

sentence in parenthesis to read as follows: ``(See paragraph (d) of

this section regarding service connection where disability or death is

a result of abuse of drugs.)''; and 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) and an authority citation

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 by the person on whose

service benefits are claimed. For the purpose of this paragraph,

alcohol abuse means the use of alcoholic beverages over time, or such

excessive use at any one time, sufficient to cause disability to or

death of the user; 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. 95-12644 Filed 5-23-95; 8:45 am]

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