VA — TRICK OR TREAT


On October 31st, 1990, the VA instituted the concept of willful misconduct. Prior to this the measurement was nominally Line of Duty (LOD). If you did something stupid like driving drunk and really messing yourself up, that was not LOD. However, the two Specialist First Class buddies who were twice as toasted as you were passengers and were LOD because they were unwitting hitchhikers of sorts. Confused? You needn’t be.  If you were not responsible for an accident (unforeseen), then you were LOD. If you were doing something you knew was stupid and managed to cause yourself great harm, then you had to repay Uncle Sam by staying in the service longer to compensate for the lost time. AWOL was assessed this way as well. We’ll address desertion in another post.

 

With the advent of drug usage and abuse, the problems gradually multiplied one hundredfold. The military method finally percolated down to the VA on Halloween, 1990.  If you came down with cirrhosis of the liver from too much Tanqueray prior to that Halloween, you could claim it as SC. All you had to document was one detox while in service to prove your case and pow! SC. Too cool for school. VA finally put their foot down and closed this loophole. 20-year junkies from Nam were filing and getting SC. This had to stop. So henceforth from that All Hallowed’s Eve of 90, the practice came to a halt. Everyone before was good to go but all those after…weren’t. This, of course was the new 38 CFR § 3.301. Allow me:

 

(a) Line of duty. Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his or her abuse of alcohol or drugs.

(b) Willful misconduct. Disability pension is not payable for any condition due to the veteran’s own willful misconduct.

(c) Specific applications; willful misconduct. For the purpose of determining entitlement to service-connected and nonservice-connected benefits the definitions in §§ 3.1 (m) and (n) of this part apply except as modified within paragraphs (c)(1) through (c)(3) of this section. The provisions of paragraphs (c)(2) and (c)(3) of this section are subject to the provisions of § 3.302 of this part where applicable.

(1) Venereal disease. The residuals of venereal disease are not to be considered the result of willful misconduct. Consideration of service connection for residuals of venereal disease as having been incurred in service requires that the initial infection must have occurred during active service. Increase in service of manifestations of venereal disease will usually be held due to natural progress unless the facts of record indicate the increase in manifestations was precipitated by trauma or by the conditions of the veteran’s service, in which event service connection may be established by aggravation. Medical principles pertaining to the incubation period and its relation to the course of the disease; i.e., initial or acute manifestation, or period and course of secondary and late residuals manifested, will be considered when time of incurrence of venereal disease prior to or after entry into service is at issue. In the issue of service connection, whether the veteran complied with service regulations and directives for reporting the disease and undergoing treatment is immaterial after November 14, 1972, and the service department characterization of acquisition of the disease as willful misconduct or as not in line of duty will not govern.

(2) The simple drinking of alcoholic beverage is not of itself willful misconduct. The deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of alcohol as a beverage, whether out of compulsion or otherwise, will not be considered of willful misconduct origin. (See §§ 21.104321.5041, and 21.7051 of this title regarding the disabling effects of chronic alcoholism for the purpose of extending delimiting periods under education or rehabilitation programs.)

(3) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct; however, the progressive and frequent use of drugs to the point of addiction will be considered willful misconduct. Where drugs are used to enjoy or experience their effects and the effects result proximately and immediately in disability or death, such disability or death will be considered the result of the person’s willful misconduct. Organic diseases and disabilities which are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. (See paragraph (d) of this section regarding service connection where disability or death is a result of abuse of drugs.) Where drugs are used for therapeutic purposes or where use of drugs or addiction thereto, results from a service-connected disability, it will not be considered of misconduct origin.

(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.

 

So, what does that say about all this business being legal before 10/31/90? I’m not that moral so I won’t conjecture. What I will point out is something that most Vets are unaware of- the old escape clause. This is part of the Santa clause.  Read again more slowly…

(2) The simple drinking of alcoholic beverage is not of itself willful misconduct.

(3) Drug usage. The isolated and infrequent use of drugs by itself will not be considered willful misconduct;

Oftimes, what a regulation permits is hidden in what is forbidden by it. Sometimes in plain sight. This has been there all along and I have only seen one VLJ parse it exactly the same.  § 3.301(c)(3) comprehends that some idiot may want to “experience” the rush of heroin, speed or whatever.  This rare occurrence should not condemn the poor boy to perdition and denial via willful misconduct if it was a one of a kind lark or even several over 3 years.  Under these unique circumstances, you can pass the mirror test and advance to a claim. On the other hand, if you have been clean for only six months and you’re 63, forget it.

The humor I find in regulations like this has to be that they even allowed alcoholic lifers to file for hyaline cirrhosis due to ETOH abuse before this was enacted.  I think drug addiction is sad. I fear it may be harder to break the addiction than booze. That’s why I come down hard on alcoholics. I think I may have been one once.  Nevertheless, there you have it. Trick or Treat from the happy folks at VA.  Their Motto? We will grant no claim before its time (time is such a subjective concept).

About asknod

VA claims blogger
This entry was posted in Introduction-Read these first, Tips and Tricks and tagged , , . Bookmark the permalink.

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