Accrued Benefits - Reopening - Missing Service Records

[free_spirit_etc]

As my husband's discharge physical is not in his C-file, and there is not any indication it was ever in the C-file - if I can ever obtain a copy, does that mean I can use it as new and material evidence to reopen any and all claims that were denied because the SMRs didn't show X (as long as the claimed condition / symptom was mentioned on discharge physical)?

[Berta]

"Seen it???" He said, "Hell! I was there when they BOMBED it!!!"

Holy Cow.........I can hardly imagine what he must have gone through.....

You are absolutely correct free spirit , as to the tobacco usage stuff.

I have seen it mainly claimed as addiction due to PTSD claims ,but I just found this claim:

“3.  The veteran's death in March 1995 was listed in the 
certificate of death as caused by lung cancer.  No other 
significant condition contributing to the cause of death was 
reported in the death certificate.  

4.  It is as likely as not that the veteran's in-service 
nicotine dependence with resultant tobacco use caused or 
contributed substantially or materially to cause his death 
from lung carcinoma. “
and in part: 
“VAOPGCPREC 19-97 cited to VAOPGCPREC 2-93, 58 Fed. Reg. 42756 
(1993), which held, in pertinent part, that whether nicotine 
dependence was a disease for disability compensation purposes 
was essentially an adjudicative matter to be resolved based 
on accepted medical principles; and that direct-incurrence 
service connection may be granted if the evidence established 
that injury or disease resulted from in-service tobacco use.  

VAOPGCPREC 19-97 cited to a May 5, 1997, memorandum, in which 
the VA's Under Secretary for Health, relying on certain 
criteria set forth in another VA General Counsel Opinion, 
stated that nicotine dependence may be considered a disease 
for VA compensation purposes.  VAOPGCPREC 19-97 further 
stated that:

econdary service connection may be 
established, under the terms of 38 C.F.R. 
§ 3.310(a), only if a veteran's nicotine 
dependence, which arose in service, and 
resulting tobacco use may be considered 
the proximate cause of the disability or 
death which is the basis of the claim....  
[A] determination of proximate cause is 
basically one of fact, for determination 
by adjudication....  

A subsequent event, which is referred to 
as an "intervening" cause, may 
interrupt the causal connection between 
an event or circumstance and subsequent 
incurrence of disability or death.”
“ORDER

Appellant's claim for service connection for the cause of the 
veteran's death is granted. “ 
This decision at the BVA was dated in 1999
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp99/files4/9935349.txt

The BVA mentioned the OGC Pres Ops here in great detail and I wonder now if I really understand 
what they said because I thought they quashed all nicotine claims in 1997,unless due to PTSD 
or other MH issues.

I tried to findmore recent BVA cases under Tobacco addiction but I am in a cloud and cant get through to the BVA yet.

[free_spirit_etc]

The tobacco addiction claims didn't last very long. They put a stop to those pretty quick - UNLESS they are secondary -- for instance having a SC mental condition that causes you to smoke.

I am not sure, but I think it also affected some widow's DIC claims. Because when they stopped claims based on conditions caused by tobacco addiction - it applied to all NEW claims. So the veteran could be SCed for conditions caused by his smoking, but if he died from that condition, the widow's DIC claim was a NEW claim, and this she couldn't be granted DIC for that condition under the new law. I am not sure, but I think that was what I read.

So again - I found it odd that the VSO started the hearing by asking me "Is it true that your husband started smoking before he entered the service?"

Generally, it seems like if someone is asking you "Is it true that ___" they are trying to tell you how to answer. And he seemed aggravated when I said I didn't know.

Puzzling. Or maybe, since we disagreed during the meeting - and he snapped at me in the hall going into the hearing room - he was just sabotaging my claim - and acting like he was representing me.

I mean really - he didn't say a WORD about my IMOs -- and even when the judge asked if I had gotten the IMOs and looked happy when I said yes -- and told me they might provide the nexus - he looked over at my VSO and waited - and the VSO just sat there and didn't say a word.

How in the world could he not say a word about the strongest evidence I had, and ask me questions about whether it is true my husband started smoking before he entered the military? Of course, he wants to prove boots on the ground. He doesn't really want to push in-service occurrence, or asbestos exposure. There is a slight inconvenience though... my husband wasn't in Vietnam.

[free_spirit_etc]

http://www.va.gov/vetapp03/Files/0306003.txt

"As explained herein, by

Congressional enactment, June 9, 1998, became the cut-off
date for filing claims based upon the tobacco theory;
tobacco-related claims filed after June 9, 1998, must be
denied as a matter of law under 38 U.S.C.A. § 1103 and
38 C.F.R. § 3.300."

[free_spirit_etc]

I do want to point out Section §3.300 (a) states, “For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service…”

However, Section §3.300 (b) states,” The provisions of paragraph (a) of this section do not prohibit service connection if:

(1) The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. For purposes of this section, “otherwise shown” means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or

(2) The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§3.307, 3.309, 3.313, or 3.316.

An excerpt from the DEPARTMENT OF VETERANS AFFAIRS, 38 CFR Part 3, RIN 2900-AJ59 Claims Based on the Effects of Tobacco Products - Final rule. (Federal Register, April 6, 2001 (Volume 66, Number 67) - Rules and Regulations - Page 18195-18198, Department of Veterans Affairs, Effective Dates: June 10, 1998) states:

Disability Becoming Manifest During Active Duty “One commenter stated that Congress intended that the term ``otherwise shown'' in section 1103(b) include any disability or death from a disease or injury which became manifest or was aggravated during service, or manifest during a presumptive period, even if it resulted from tobacco use. The commenter recommended that VA's regulation be amended to specify this. The commenter suggested that, unless the term ``otherwise shown'' is clearly defined by the regulation, VA regional office adjudicators may misinterpret and misapply it. Regarding the definition of ``otherwise shown,'' we believe it was intended to convey that 38 U.S.C. 1103 generally precludes establishment of service connection for a disability or death on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products. However, a review of the legislative history reveals an additional purpose behind 38 U.S.C. 1103(b): To permit claims where the disability manifests while on active duty, even if they are based on tobacco use. In our view, 38 U.S.C. 1103 was not intended to affect a veteran's ability to establish service connection on the basis of any legal presumption, including both statutory and regulatory presumptions. Therefore, section 3.300(b) in the proposed regulations provided that section 3.300(a) does not prohibit service connection for a disability or death if it resulted from a disease or injury otherwise shown to have been incurred or aggravated during service, or that became manifest to the required degree of disability within a period that establishes eligibility for a presumption of service connection under 38 CFR 3.307, 3.309, 3.313, or 3.316, or that may be service-connected under Sec. 3.310(b). We agree, however, that clarification would be helpful and have therefore amended proposed section 3.300(b)(1) to state that, ``[f]or purposes of this section, `otherwise shown' means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service.''