PREC 7-99    Dependency and Indemnity Compensation--Disabilities Resulting from Alcohol or Drug Abuse--Pub. L. No. 101-508, § 8052    Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-99,  VAOPGCPREC 7-99, 1999

A. In view of the amendments made by section 8052 of the Omnibus Budget Reconciliation Act of 1990 (OBRA 1990), can a disability due to substance abuse caused by a service-connected disability be service connected under 38 C.F.R. § 3.310(a)?

B. Can the aggravation by a service-connected disability of a nonservice-connected disability arising out of substance abuse be service connected under 38 C.F.R. § 3.310(a)?

C. In light of the decision of the United States Court of Appeals for Veterans Claims (Veterans Court) in Barela v. West, 11 Vet. App. 280 (1998), and VAOPGCPREC 2-98, may dependency and indemnity compensation (DIC) be considered "disability compensation"?

D. May the Department of Veterans Affairs (VA) award DIC based either on a veteran’s death caused by a disability due to substance abuse that was itself secondary to a service-connected disability or on a veteran’s death while receiving or entitled to receive compensation for such a substance-abuse disability that was continuously rated totally disabling for an extended period immediately preceding death?

A. The amendments made by section 8052 of the Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388-351, which are applicable to claims filed after October 31, 1990, prohibit the payment of compensation to a veteran under 38 U.S.C. § 1110 or 1131 for service-connected disability ("disability compensa-tion") for a disability that is a result of a veteran’s own abuse of alcohol or drugs (a "substance-abuse disability"), and they preclude direct service connection of a substance-abuse disability for purposes of all VA benefits, including dependency and indemnity compensation. The amendments do not preclude service connection under 38 C.F.R. § 3.310(a) of a substance-abuse disability that is proximately due to or the result of a service-connected disease or injury. A substance-abuse disability caused by a service-connected disability can be service connected under section 3.310(a) for purposes of all VA benefits. However, disability compensation cannot be paid for such a disability.

B. The aggravation of a substance-abuse disability by a service-connected disability can be service connected under section 3.310(a) for purposes of all VA benefits. However, disability compensation cannot be paid for such aggrava-tion.

C. Dependency and indemnity compensation is a benefit distinct from disability compensation for purposes of the amendments made by section 8052 of the Omnibus Budget Reconciliation Act of 1990 and is not affected by that Act’s prohibition on payment of disability compensation
for substance-abuse disability.

D. VA may award dependency and indemnity compensation to a veteran’s survivors based on either the veteran’s death from a substance-abuse disability secondarily service connected under 38 C.F.R. § 3.310(a) (entitlement estab-lished under 38 U.S.C. § 1310) or based on a veteran’s death while in receipt of or entitled to receive compensa-tion for a substance-abuse disability secondarily service connected under section 3.310(a) and continuously rated

totally disabling for an extended period immediately preceding death (entitlement established under
38 U.S.C. § 1318).