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Updated Dec 03, 2021

In This Section
This section contains the following topics:
Topic
Topic Name
1
2
3

1.  Disability or Death From Use of Alcohol

Introduction
This topic contains information on disability or death from use of alcohol, including

Change Date
May 23, 2018

X.iv.1.D.1.a.  Willful Misconduct
The simple drinking of an alcoholic beverage in and of itself is not willful misconduct.  If deliberate intoxication results proximately and immediately in disability or death, the disability or death will be considered the result of willful misconduct.
Reference:  For more information on willful misconduct, see

X.iv.1.D.1.b.  Alcoholism as a Primary Disability

 Alcoholism as a primary disability is not a basis for granting entitlement to or increasing compensation or Veterans Pension under the laws administered by the Department of Veterans Affairs (VA).

X.iv.1.D.1.c.  Definition: Alcohol Abuse
Alcohol abuse is the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability or death to the user.
Reference:  For more information on the definition of alcohol abuse, see 38 CFR 3.301(d).

X.iv.1.D.1.d.  Alcoholism Secondary to an SC Disability
Where there is sufficient medical evidence establishing that an alcohol abuse disability is secondary to or a symptom of a service-connected (SC) disability, and where the alcohol abuse disability is not due to willful misconduct, then a Veteran may establish service connection (SC) for the alcohol abuse disability on a secondary basis.  Establish SC under 38 CFR 3.310(a) for any diseases or disabilities resulting from alcohol abuse, if alcohol abuse is determined to be secondary to an SC disability.
Example:  A Veteran is SC for a chronic back disability  He claims SC for alcohol abuse as secondary to the back disability.  The VA examination diagnoses alcohol abuse as secondary to the back disability, noting that the Veteran experiences chronic, intractable back pain and has utilized alcohol for treatment of the pain to the point that he is now alcohol-dependent.  Award SC for alcohol abuse secondary to the SC back disability.
Reference:  For more information on establishing SC for drug abuse secondary to or as a symptom of an SC disability, see Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001).

X.iv.1.D.1.e.  Alcoholism Due to Personality Disorders
Do not consider personality disorders characterized by developmental defects or pathological trends in the personality structure as underlying psychiatric diseases for the purpose of secondary SC in compensation claims.
Alcoholism due to personality disorders
  • may not be the basis for granting or increasing disability compensation, but
  • may be the basis for a rating of incompetency.

X.iv.1.D.1.f.  Claims Filed Before August 13, 1964, Involving the Secondary Effects of Alcohol
The secondary effects of alcohol were considered of willful misconduct origin before August 13, 1964.
Do not award benefits under 38 CFR 3.114(a) prior to August 13, 1964, for the secondary effects of alcohol.

X.iv.1.D.1.g.  Claims Filed Between August 13, 1964, and October 31, 1990, Involving the Secondary Effects of Alcohol
Organic diseases shown by substantiating evidence as a secondary result of the use of alcohol as a beverage, whether out of compulsion or otherwise, were not considered to have been the result of willful misconduct in claims filed between August 13, 1964, and October 31, 1990.
Note:  Secondary results, such as cirrhosis of the liver, gastric ulcer, peripheral neuropathy, or chronic brain syndrome
  • sometimes appear because of indulgence in alcohol, and
  • may have been the basis for payment of compensation or Veterans Pension, whether attributable to the chronic use of alcohol or other causes, under regulations then in effect.

X.iv.1.D.1.h.  Claims Filed After October 31, 1990, Involving the Secondary Effects of Alcohol
The awarding of SC for secondary disabilities or death resulting from alcohol or drug abuse is prohibited effective November 1, 1990, under the provisions of Public Law (PL) 101-508.
Do not consider disabilities or death that result from the abuse of alcohol during active service to have been incurred in the line of duty.  However, under Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), where there is sufficient medical evidence establishing that the alcohol or drug abuse disability is secondary to, or is a symptom of SC disability, and where the alcohol or drug abuse disability is not due to willful misconduct, then a Veteran may establish SC for the alcohol or drug abuse disability on a secondary basis.
The Federal Circuit, in Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001), held that 38 U.S.C. 1110, precludes payment of compensation in only two situations
  • primary alcohol abuse disabilities that arise during service, or
  • secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse.
The Federal Circuit defined “primary” as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess.  In addition, substance abuse may be a symptom of worsening of an SC condition resulting in a higher rating for that condition.
Important:  Do not
  • sever SC that was properly established under regulations  in effect prior to November 1, 1990, or
  • award an increase in compensation for the secondary effects of alcohol based on any claim received after October 31, 1990, including a claim
    • for an increased evaluation, or
    • to add a dependent.
Note:  Cost-of-living increases, for which no claim is required, may be paid.
Reference:  For more information on line of duty and alcohol abuse, see

X.iv.1.D.1.i.  DIC Based on Death Resulting From an Alcohol-Related Disease or Disability
Dependency and Indemnity Compensation (DIC) may not be granted based on death in service if the
  • death resulted from an alcohol-related disease or disability, and
  • an original or reopened claim is received after October 31, 1990.

X.iv.1.D.1.j.  Resolving Reasonable Doubt
Disabilities generally attributable to alcohol abuse may be due to other causes.
Do not deny a claim for SC for a disability on the basis of being related to alcohol abuse unless a preponderance of the evidence shows that the disability is primarily due to alcohol abuse.
Resolve reasonable doubt in favor of the claimant.
Notes:
  • It is not always possible to determine the cause of a disease or disability.
  • Any indication that a condition is the result of alcohol abuse may be rebutted by evidence showing some other cause.
Reference:  For more information on application of the reasonable-doubt rule in compensation cases, see

2.  Disability or Death From Use of Drugs

Introduction
This topic contains information on disability or death from use of drugs, including

Change Date
May 23, 2018

X.iv.1.D.2.a.  Willful Misconduct
Consider disability or death the result of willful misconduct when the evidence shows
  • drugs were used to enjoy or experience their effects, and
  • drug usage resulted proximately and immediately in disability or death.
The progressive and frequent use of drugs, other than for a recognized therapeutic purpose, which results in addiction, is considered willful misconduct.
Note:  The following will not be considered willful misconduct
  • isolated and infrequent use of drugs by itself
  • use of drugs for therapeutic purposes, or
  • use of drugs or addiction to drugs resulting from SC disability.
Reference:  For more information on willful misconduct due to drug usage, see 38 CFR 3.301(c)(3).

X.iv.1.D.2.b.  Definition:  Drug Abuse
Drug abuse is defined by VA as
  • the use of illegal drugs (including prescription drugs that are legally 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.
Reference:  For more information on drug abuse, see 38 CFR 3.301(d).

X.iv.1.D.2.c.  Willful Misconduct and the Secondary Effects of Drug Usage Prior to November 1, 1990
Organic diseases and disabilities shown by substantiating evidence as a secondary result of the chronic use of drugs, or infections coinciding with the injection of drugs, were not considered to have been the result of willful misconduct in claims filed prior to November 1, 1990.

X.iv.1.D.2.d.  Claims for SC for the Secondary Effects of Drug Usage Filed After October 31, 1990
The grant of SC for secondary disabilities or death that results from the abuse of drugs is prohibited effective November 1, 1990, under the provisions of PL 101-508.
Do not consider disabilities or death resulting from the abuse of drugs during active service to have been incurred in the line of duty.
Important:  Do not
  • sever SC that was properly established under regulations previously in effect prior to November 1, 1990, or
  • award an increase in compensation for the secondary effects of drug use based on any claim received after October 31, 1990, including a claim
    • for an increased evaluation, or
    • to add a dependent.
Note:  Cost-of-living increases, for which no claim is required, may be paid.
Reference:  For more information on line of duty and drug abuse, see

X.iv.1.D.2.e.  Drug Abuse Secondary to an SC Disability
Where there is sufficient medical evidence establishing that a drug abuse disability is secondary to or a symptom of an SC disability, and where the drug abuse disability is not due to willful misconduct, then a Veteran may establish SC for the drug abuse disability on a secondary basis.  Establish SC under 38 CFR 3.310(a) for any diseases or disabilities resulting from drug abuse, if drug abuse is determined to be secondary to an SC disability.
Example:  A Veteran is SC for posttraumatic stress disorder (PTSD).  He claims SC for drug abuse as secondary to the PTSD.  The VA examination diagnoses drug abuse as secondary to the PTSD, noting that the Veteran relies on marijuana for treatment of his PTSD symptoms.  Award SC for drug abuse secondary to SC PTSD.
Reference:  For more information on establishing SC for drug abuse secondary to or as a symptom of an SC disability, see Allen v. Principi, 237 F. 3d 1368 (Fed. Cir. 2001).

3.  Disability or Death From Use of Tobacco Products

Introduction
This topic contains information on disability or death from use of tobacco products, including

Change Date
September 15, 2011

X.iv.1.D.3.a.  Prohibition Against Direct SC
Effective June 9, 1998, the awarding of SC for a disability or death that results from the Veteran’s use of tobacco products in service is prohibited.
Reference:  For more information, see 38 CFR 3.300(a).

X.iv.1.D.3.b.  Disability Secondary to a Tobacco-Related SC Disability
Under 38 CFR 3.300(c), the establishment of SC for a disability that develops as a result of a tobacco-related disability, for which SC was previously awarded based on the Veteran’s use of tobacco products during service, is prohibited, if such a claim for SC is received on or after June 9, 1998.

X.iv.1.D.3.c.  Example:  Claim for a Disability Secondary to a Tobacco-Related SC Disability
Facts:  SC for nicotine dependence resulting from tobacco use that began during service was established in 1997.  In April 2003, the Veteran claimed that his chronic obstructive pulmonary disease was secondary to SC nicotine dependence.
Result:  Deny SC for chronic obstructive pulmonary disease.
Rationale:  Although SC was previously established for nicotine dependence, under 38 CFR 3.300(c) the establishment of SC for a disability that is secondary to a tobacco-related SC disability is prohibited, because the claim was filed after June 9, 1998.

X.iv.1.D.3.d.  Secondary SC for Disability or Death Related to Tobacco Use After Service
In VAOPGCPREC 6-2003, General Counsel held that secondary SC may be established for disability or death related to tobacco use after service that is the result of or aggravated by SC disability unrelated to tobacco use.

X.iv.1.D.3.e.  Considering Claims for Secondary SC
The table below shows the steps involved in considering claims for secondary SC for disability or death related to tobacco use after service.
Step
Action
1
Did SC disability cause the Veteran to use tobacco products after service?
  • If yes, go to Step 2.
  • If no, deny the claim.
2
Was the use of tobacco products after service a substantial factor in causing or aggravating the disability claimed as secondary or in causing or contributing to death?
  • If yes, go to Step 3.
  • If no, deny the claim.
3
Would the additional disability or death have been prevented but for the use of tobacco products caused by SC disability?
  • If yes, award SC for the secondary disability or death.
  • If no, deny the claim.

X.iv.1.D.3.f.  Example:  Claim for Secondary SC for a Disability Related to Tobacco Use After Service
Facts:  A Veteran with an SC evaluation for PTSD claims secondary SC for tobacco-related emphysema.  He states that he started smoking cigarettes after service because of anxiety related to PTSD.
Result:  Award SC for emphysema on a secondary basis if it is shown that
  • symptoms of PTSD resulted in the Veteran’s use of cigarettes
  • cigarette smoking caused by PTSD was a substantial factor in causing (or aggravating) emphysema, and
  • emphysema (or an increase in its severity) would not have occurred if the Veteran had not smoked cigarettes.
Rationale:  Per VAOPGCPREC 6-2003, secondary SC may be awarded for disability related to tobacco use after service that is the result of or aggravated by SC disability unrelated to tobacco use.