a.  For claims filed after October 31, 1990, based on service connection of disability or death resulting from a veteran’s own alcohol or drug abuse, does section 8052 of the Omnibus Budget Reconciliation Act of 1990 preclude entitlement to the following benefits:

(1)  Dependents’ educational assistance under 38 U.S.C. ch. 35?

(2)  Burial benefits?

(3)  Accrued benefits?

(4)  Surviving spouses’ loan guaranty benefits under 38 C.F.R. § 3.805?

(5)  The special allowance under 38 U.S.C. § 1312?

(6)  Medical care under the Department of Veterans Affairs Civilian Health and Medical Program (CHAMPVA)?

b.  If, based on a claim filed on or before October 31, 1990, service connection has been established for a disability that resulted from a veteran’s own alcohol or drug abuse, what effect does section 8052 of the Omnibus Budget Reconciliation Act of 1990 have on a claim for an increased rating filed after October 31, 1990?

HELD:

a.  With respect to claims filed after October 31, 1990,

38 U.S.C. § 105(a), as amended by section 8052(a)(1) of the Omnibus Budget Reconciliation Act of 1990 and implemented by 38 C.F.R. § 3.1(m), precludes, for purposes of all VA benefits, a finding that an injury or disease that was a result of a person’s own alcohol or drug abuse was incurred or aggravated in line of duty.  Thus, for purposes of all VA benefits, eligibility for which requires a service-connected disability or death, section 105(a) precludes service connection of a disability resulting from alcohol or drug abuse on the basis of the disability’s incurrence or aggravation in service or of a death resulting from such a disability.  However, for purposes of all such VA benefits other than disability compensation, the amendments made by section 8052 do not preclude eligibility based on a disability, or death resulting from such a disability, secondarily service connected under 38 C.F.R. § 3.310(a) as proximately due to or the result of a service-connected disease or injury.

b.  Claims for increase filed after October 31, 1990, are subject to the amendments made by section 8052(a) of the Omnibus Budget Reconciliation Act of 1990.  If, based on a claim filed on or before October 31, 1990, service connection has been established for a disability that resulted from a veteran’s own alcohol or drug abuse, 38 U.S.C. §§ 1110 and 1131, as amended by section 8052(a), prohibit the payment of any increase in compensation for that disability, based on a claim for increase filed after
October 31, 1990, including, for example, a claim for an increased rating or a claim for increase based on acquisition of a dependent.  Sections 1110 and 1131 do not, however, prohibit continuation or reduction, in accordance with the facts, of an award of compensation for the disability established on the basis of a claim filed on or before that date.  Further, sections 1110 and 1131 do not prohibit payment of an increase in compensation, such as a cost-of-living adjustment, that would become effective without the filing of a claim.