I have seen this one used before several years ago but it has always met with mixed success at the BVA. 38 CFR § 3.301(c)(3) is rarely employed but here it worked. One might note the Vet was represented by an individual rather than an attorney or VSO. This is permissible on a one-time basis if another Veteran chooses to do it. Here, it worked quite well. Mr. Christopher Loiacono was either being coached or has an inordinate amount of knowledge on the subject of willful misconduct.
38 CFR §3.301(c)(3)
(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.
The above in red is most often employed where a Vet with PTSD “self-medicates” himself into a ripsnorting case of HCV via injection of drugs. The “isolated or infrequent use” defense can only be used if the Vet candidly admits it (in moderation) but has never been convicted of it via a UCMJ sanction or LOD determination.
P.S. Ever since the revelation in Walker v. Shinseki over the true meaning of 38 CFR §3.303(b) and it’s sole application to the diseases described in 3.309(a) , I have always parsed the way a regulation is written. Much like a cheap Walmarket® sweater, 3.303(c)(3) above is saddled with a huge glorious hole for Hepatitis C sufferers. Stay with me now lawdogs. Remember Good Samaritan Hospitals v. Shalala? First we begin by ascertaining the clear meaning of VA’s regulation. Also the Chevron defense of having the agency of jurisdiction be given deference to their interpretation. Now read the Miriam Webster definitions (VA’s favorite) of two adverbs used above with their root adjectival meaning…
So, the clear meaning of this phrase is:
If you used a drug (or drugs) such that it (they) impaired you instantly, harmed you permanently by either killing you or rendering you immediately and permanently disabled, it will be considered willful misconduct.
But, if, on the other hand, you used a drug or drugs that DID NOT proximately and immediately harm you at the time but, quite the opposite, infected you with an organic disease (think hepatitis c) that quietly began destroying you over a period of 30 years, then this cannot be considered willful misconduct.
But see the sentence immediately following the one above discussing “immediate” disability or death states:
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.
Hepatitis C is an organic disease as it destroys or alters the focal architecture of the liver (cirrhosis). It is obvious that when this was written in 1961, and last amended in 1995, the cryptogenic nature of Heptitis C and its deleterious, long-term damage still had not been comprehended nor contemplated.
The clear reading of 3.301(d) attempts to clear up any misunderstandings about Line of Duty (LOD) determinations regarding the abuse of drugs or alcohol:
(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))
Now, let’s disassemble section (d) and see what applies and what does not. First of all, let’s toss out all the extremely trashed or hammered language and focus on drugs. The key word here is “abuse of drugs”. the last sentence in bolded red is the meat.
If you were in pain and injected a prescribed narcotic pain reliever for its therapeutic effects even though it was not prescribed to you and you did not become addicted to it and classified as an addict, you would be accorded service connection if you somehow contracted Hepatitis C-an organic disease. The definition of “illicitly obtained” is a red flag.
If you get to the high ground first and say you used it to enjoy or experience it’s effects, you’re okay. If you kept using it to the point of addiction, it was Willful Misconduct. If it almost killed you and left you brain dead immediately thereafter, it was Willful Misconduct.
But… if you come down with hepatitis C 35 years later after sharing a needle with a junkie one time while enjoying and experiencing the heroin’s effects, it is not Willful Misconduct. As long as you never abuse a drug by using it for a purpose other than the medically intended use, it is not Willful Misconduct. Narcotic pain relievers are many and varied. Absent abuse or addiction, any disease or injury incurred is not grounds for a finding of misconduct.
That is our Chevron deference teaching moment today. I don’t make this stuff up. Here’s what I see. Just as Venereal diseases are repugnant but still not willful misconduct, so too is Hepatitis C. It has to be cast in that light as an interpretation of 3.301(c) (1). Absent any abuse of a drug or addiction, as defined, the use of the drug is not willful misconduct. Ergo any contraction of a cryptogenic organic disease that takes forever (as opposed to immediately) to metastasize due to the injection of that drug is not, in and of itself willful misconduct either.
The Veteran would have to be pre-cognizant of the knowledge of a) the risk involved contracting Hepatitis, and/or b) pre-cognizant that becoming addicted to or abusing injectable drugs, that contraction of the organic disease could ultimately result in disability.
Absent the knowledge of the long-term risk, there can be no Willful Misconduct if the drug was merely used to enjoy and experience its effects without ever abusing it to the point of addiction.
Interesting legal theorem. Yes, your honor. I shot up Morphine with junkies a few, rare times but only did it to enjoy or experience it to see what it was like. Later, I used it occasionally to quell the pain of my service connected bad back -but never to the point of abuse or addiction. I had Hepatitis C by then so it wasn’t willful misconduct anyway.
P.P.S. Here’s LawBob Squarepants’ weigh in on this misbegotten regulation. It’s quite cogent and he’s mentioned it to me before on several cases.
But, on a more fundamental level, only the SERVICE BRANCH can make a willful misconduct determination.
At least as to willful misconduct during active duty.
The VARO holier than thou’s try to change the ruling on the field 40 years after the game is over. NO can do. I have busted them 3 times on this.
VA can make a post service willful misconduct determination but often that is trumped by Allen, drug/ alcohol as secondary to PTSD or other mental illness.