[Federal Register Volume 60, Number 100 (Wednesday, May 24, 1995)]
[Rules and Regulations]
[Pages 27407-27409]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12644]
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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]
BILLING CODE 8320-01-P
