In both Social Security and VA Disability law, usually, the issue is raised because a disabled Social Security claimant or veteran is using drugs and/or alcohol at the same time they are trying to pursue a disability claim. When asked about drugs and/or alcohol, some of my clients are often astonished that there is even mention of drugs or alcohol in their file. So, in both Social Security and VA cases, the question usually becomes: now that my record mentions drugs and/or alcohol, what can or should I do about it?
In the Social Security context, a problem with drugs and/or alcohol is almost always fatal to a successful outcome in the case. The law says that the Social Security Administration (SSA) will look to see if alcohol or drug use is a contributing factor that is material to the disabling impairment(s). In other words, would SSA still find the person disabled if he/she stopped using drugs or alcohol. If the person would still be disabled if he/she stopped using drugs or alcohol, technically, he/she should be awarded benefits. However, this determination is normally not as simple as it sounds.
For example, imagine a person who suffers from depression and an alcohol or drug problem. The person is using alcohol or drugs to help cope with the depression, because in his/her opinion, the depression medications prescribed by the doctor do not seem to work. This scenario raises a few issues. First, it is important to know whether or not the person has been advised to stop drinking or using drugs by the doctor. If the doctor has advised the person to stop and they continue to engage in the behavior, SSA will likely determine that the person is ignoring medical advice. In other words, they are non-compliant with the doctor’s orders. Other considerations are also whether the person is using v. abusing, is it prescription drugs or illegal drugs, etc.
In our experience, most judges will refuse to grant Social Security Disability Benefits to anyone who is abusing alcohol and/or drugs, including prescription drugs. If there are errors or misstatements in the medical record regarding alcohol and/or drugs, it is crucial that the patient talks with his/her doctor and get the record corrected as soon as possible so as not to negatively affect the Social Security case. If the allegations are true, the Social Security claim will likely be denied if the person does not stop the drugs or alcohol right away.
In the VA context, substance abuse is viewed in somewhat of a different light. Unlike Social Security Disability, an issue with drugs and/or alcohol is not always fatal to the success of a VA disability claim. The VA will evaluate whether or not the veteran is disabled due to ‘willful misconduct’ which is the proximate or direct cause or the claimed disabilities. Willful misconduct is defined in the VA regulations as “an act involving conscious wrongdoing or known prohibited action.” If the VA determines that a disability is due to willful misconduct, the veteran is not eligible for compensation or pension for any disabilities related to the misconduct. However, the veteran is still eligible to claim compensation or pension for disabilities not related to the misconduct.
A common example that arises in VA disability law is veterans with PTSD and alcohol or drug issues. There is research that indicates that many veterans use drugs and/or alcohol as a coping mechanism for serious psychological trauma they have suffered as a result of military service. Assuming that the veteran can establish that he/she suffers from service connected PTSD, and if he/she can prove that the alcohol or drug abuse is caused by or secondary to the PTSD, the VA regulations do allow for secondary service connection of the substance abuse disorder. Service connection under this theory would also extend to any other conditions that develop as a result of the substance abuse, such as cirrhosis of the liver. So in other words, secondary drug or alcohol abuse in this context would not be barred from service connection based on willful misconduct.
Of course not every veteran with substance abuse and mental health issues will be able to obtain service connection for the abuse; however, the point is that under VA disability law, a successful outcome is still possible.
In sum, the bottom line is that drugs and alcohol do matter. If allegations of drugs and/or alcohol are false, it is crucial that the veteran or Social Security claimant speak to his/her doctor right away to get the record corrected as soon as possible. Lastly, it should be noted that if there is a “past history” of abuse, the fact that the abuse is in the past needs to be clarified in the record as well.
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