Veterans Can Receive Secondary VA Disability

Veterans Can Receive Secondary VA Disability for Alcohol or Drug Addiction

By VNN on May 27, 2010

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" DISABILITIES):

Current Rules Concerning Service-Connected Disability and DIC claims involving "Alcoholism" and "Drug Addiction" are as follows:
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 is 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use the more narrow interpretation of OBRA1990 are now "invalidated" by the Allen decision have not yet been formally rescinded.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" DISABILITIES):

(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 THE BENEFITS 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 "ALCOHOLISM" 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 ALCOHOLISM, 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 INTERPRETATION 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 CIRCUIT 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 INTERPRETATION 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 OPTIMISTIC 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 GENERALLY 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…

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