Tobacco Related Claims

[Cavman]

I just read an article the V.A. notified their C & P examiners back in 1997 concerning tobacco related disabilities and death. The way it read to me was that the military could be responsible for these disabilities and deaths related to cancers, heart conditions etc. if we first smoked in the service.

I was recently denied AO disability with my lymphnode/tonsil cancer. Here is the thing I thought of. I never smoked before entering Vietnam. We were encouraged to take free cigarettes everytime they were sent out to the bush to us. They were free and different brands were sent out quite often. They wanted us to learn to smoke to help keep us from going crazy and to keep us awake on our nightly guard duty of the perimeter or ambush detail. They even taught us how to cup them in our hands to keep charlie from seeing the light from the cigarette. The point is they gave them to us and got us started on the habit.

I feel I got screrwed on my cancer claim so if I don`t get my 100% on my awaited appeal I might consider this claim. I also have a very good friend that is a lawyer and has offered to help me anytime at no charge if needed. What do you guys and gals think?

Cavman

[Philip Rogers]

I just read an article the V.A. notified their C & P examiners back in 1997 concerning tobacco related disabilities and death. The way it read to me was that the military could be responsible for these disabilities and deaths related to cancers, heart conditions etc. if we first smoked in the service.

I was recently denied AO disability with my lymphnode/tonsil cancer. Here is the thing I thought of. I never smoked before entering Vietnam. We were encouraged to take free cigarettes everytime they were sent out to the bush to us. They were free and different brands were sent out quite often. They wanted us to learn to smoke to help keep us from going crazy and to keep us awake on our nightly guard duty of the perimeter or ambush detail. They even taught us how to cup them in our hands to keep charlie from seeing the light from the cigarette. The point is they gave them to us and got us started on the habit.

I feel I got screrwed on my cancer claim so if I don`t get my 100% on my awaited appeal I might consider this claim. I also have a very good friend that is a lawyer and has offered to help me anytime at no charge if needed. What do you guys and gals think?

Cavman

If I recall correctly tobacco claims can't be pursued. I think it has something to do with the tobacco settlements back a few years. Congress passed a bill that protected the govt.

pr

[Berta]

Yes- that is correct . In 1998 the VA established 38 USC 1103 which states that tobacco use attributed to service is not a basis for service connected.

HOWEVER- this statute does not mean that the VA can deny claims solely on the basis of tobacco use in service-

As long as the three elements of Hickson are met (someone referred to Hickson the other day here)

Hickson is the basis for all SC claims- the veteran can still prevail.

NVLSP gives this example: (page 131 VBM)

The vet has lung cancer, She files SC claim within a year after discharge after 20 years after service.

Her private oncologist gives IMO stating that the cancer, based on her SMRs,

showed early stages while she was still in the military.She started smoking in mil-2 1/2 packs a day-

The IMO oncologist states that she had a 2 1/2 day smoking habit in the military.

The VA grants due to the fact this falls into the presumptive period. The onocologist IMO established the medical nexus.

Secondary disabilities due to drug or alcohol abuse are discussed at lengthy -

The Allen decision overturned prior VA case law (Barela) in that regard.

If a veteran suffers from disability secondary to alcohol or drug use,

they might be able to obtain secondary SC for the disability.

These claims involve numerous nuances and anyone with this type of claim needs a good SO and full access to the VA regs and opinions on this.

VBM example-

Vet has SC PTSD and develops cirrosis of the liver due to alcohol abuse.

Vet proves -with medical evidence-that the alcohol abuse is caused by his SC PTSD.

Vet can get the cirrosis disability granted as secondary.

However there are ways VA can get around these claims.

The VBM has much info and refers the reader to General Counsel Pres Op 6-2003 .

Also they give this example: vet has PTSD . Vet develops lung cancer from smoking.

Vet proves he began smoking after service to help relieve his PTSD.

If he vet can prove that an additional disability he has "would not have occurred but for use of the tobacco products caused by the service connected disability" the vet can succeed in a secondary SC claim.

They cite: the opinion GC Pres op and 38 CFR 3.303

Edited December 14, 2006 by Berta