PREC 11-96    Dependency and Indemnity Compensation -- Disabilities resulting from Alcohol or Drug Abuse - Pub. L. No. 101-508 § 8052     Citation: Vet. Aff. Op. Gen Couns. Prec. 11-96, VAOPGCPREC 11-96, 1996

QUESTIONS PRESENTED:

1.  Does section 8052 of the Omnibus Budget Reconciliation Act of 1990 prohibit payment of dependency and indemnity compensation under 38 U.S.C. § 1310 for a veteran’s death where the disability from which the veteran died resulted from the veteran’s alcohol or drug abuse, but service connection of the disability was established for disability compensation purposes based on a claim filed on or before October 31, 1990?

2.  Does section 8052 of the Omnibus Budget Reconciliation Act of 1990 prohibit payment of dependency and indemnity compensation under 38 U.S.C. § 1318 where the disability that was continuously rated totally disabling for an extended period immediately preceding a veteran’s death resulted from the veteran’s alcohol or drug abuse, but service connection of the disability was established for disability compensation purposes based on a claim filed on or before October 31, 1990?

HELD:

Section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351, applicable to claims filed after October 31, 1990, precludes an injury or disease that is a result of a person’s own abuse of alcohol or drugs from being considered incurred in line of duty and, consequently, precludes resulting disability or death from being considered service connected.  Section 8052 therefore prohibits the payment of dependency and indemnity compensation based on a veteran’s death resulting from such a disability or on the basis that the veteran was in receipt of or entitled to receive compensation for such a disability continuously rated totally disabling for an extended period immediately preceding death.  Even where service connection established for compensation purposes in a claim filed on or before October 31, 1990, for a disability resulting from a veteran’s own alcohol or drug abuse has been in effect for ten or more years and would therefore generally be protected from severance under the provisions of 38 U.S.C. § 1159 and 38 C.F.R. § 3.957, section 8052 prohibits the payment of dependency and indemnity compensation in a claim filed after October 31, 1990, based on a veteran’s death resulting from such a disability or on the basis that the veteran was in receipt of or entitled to receive compensation for such a disability continuously rated totally disabling for an extended period immediately preceding death.