Mrs. Rockman,
This is part of the evidence I used on my COPD claim. It is still awaiting a decision since last May.
C. GENERAL COUNSEL’S PUBLISHED OPINIONS (From time to time, the General Counsel’s Office of the Veterans Administration publishes opinions on the interpretation or application of statutes or regulations. These opinions are considered binding precedent with respect to all claims pending before the regional offices and the Board of Veterans’ Appeals.)
1. VAOPGCPREC 6-2003 (This opinion addresses whether a veteran’s tobacco-related disability or death may be service connected secondary to a service-connected mental disability, which caused the veteran to use tobacco. 38 U.S.C. § 1103(a) prohibits a finding of service connection of a disability or death resulting from the veteran’s use of tobacco during his service. The General Counsel opinion, however, clarifies that service connection is permissible if the veteran’s disability or death is the result of his post-service use of tobacco, which is caused by a service-connected psychological disability.)
Practice Note: Representatives should keep this General Counsel opinion in mind when handling PTSD and other mental disability claims. Many emotional disorders and disabilities can lead to the veteran’s chronic tobacco use after service in much the same way that emotional disabilities can lead to veteran’s “self-medication” (drug or alcohol abuse) following service. Of course, there must be medical evidence in the record supporting this secondary theory of service-connected disability or death.)
2. VAOPCGPREC 3-2003 (This opinion discusses whether a claimant is required to show that the disease or injury increased in severity during service before the presumption of aggravation applies. 38 U.S.C. § 1111 provides that a veteran will be presumed in sound condition if his entrance examination does not note any relevant defects, diseases or conditions. The statute further provides that this presumption may be rebutted by clear and unmistakable evidence of both 1) that the condition existed prior to service, and 2) that it was not aggravated by service. However, 38 C.F.R. § 3.306(b) imposes an additional requirement on the claimant in order to receive the presumption in cases of aggravation. § 3.306(b) requires the claimant to show that the pre-existing condition increased in severity during service. The General Counsel opinion determines that this part of the regulation is invalid, as it is inconsistent with 38 U.S.C. § 1111.)
Practice Note: VAOPCGPREC 3-2003 is a new General Counsel opinion, of which many of the regional offices may not be aware. Therefore, be on the look out for claims which have been denied on the basis that there was no evidence of increased disability during service. This showing is no longer required to obtain the favorable presumption