Page 4.

Director (00/21)

c. Ask the claimant for medical evidence of current disability.

d. Ask the claimant for medical nexus evidence.

e. Where indicated, ask the claimant for post-service treatment records.

f. In well-grounded claims, request an opinion from a VA examiner, if necessary, concerning any etiological relationship between in-service tobacco use and the claimed disability. In such cases, the claims folder will be made available for review by the physician.

g. Weigh the evidence and decide the claim.

11. During the March 4, 1993, Judicial Review Conference Call, regional offices were advised to defer action on claims involving the use of tobacco products during active service and to maintain a log for control of the cases. Effective immediately, regional offices should pull and adjudicate all cases on that log. For end product control purposes, the date of claim for all claims received on or before the date of this letter, will be the date of this letter. For all claims received after the date of this letter, the date of claim will be the actual date of receipt of the claim. If service connection for a claim based upon the use of tobacco products during service is granted, the effective date will be based on the actual date of receipt of the claim.

12. In the near future, regional offices will be required to provide statistical information about each tobacco-related claim. See Attachment A for the budgetary information that needs to be captured. Please complete a sheet for each completed claim and hold for future instructions.

Kristine A. Moffitt

Disposition of Claim(s) for Tobacco-related Disorder(s) Granted

If Granted:

Diagnostic Code(s)

(For tobacco-related disorders only)

Percent(s) of Evaluation

Effective Date(s)

Combined Percent Without Tobacco-related Disorders

Combined Percent With Tobacco-related Disorders

Prior Combined Percent in Non-original claims that are granted:

Amount of retroactive pay only for disability(ies) due to tobacco-use
Do not include amounts paid for non-tobacco-use disorders.
(Total amount of retroactive payment less amount of retroactive
payment for non-tobacco-use products.)

Was an opinion requested from a VA examiner?

Denied

CLAIMS INVOLVING DISABILITIES OR DEATH BASED ON
TOBACCO USE DURING ACTIVE SERVICE

1. This Information Letter provides new guidance for compensation and pension (C&P) examiners on claims involving the use of tobacco products while on active duty. On January 28, 1997, Veterans Benefits Administration (VBA) sent their regional offices guidance on the adjudication of claims on this subject.

2. In Department of Veterans Affairs Opinion of General Counsel Precedent (VAOPGCPREC) 2-93 dated January 13, 1993, the General Counsel (GC) addressed the issue of service connection for disabilities or death resulting from the use of tobacco products in service. The essential holdings of that lengthy opinion, for purposes of this discussion, were that tobacco use does not constitute drug abuse, for purposes of statutes barring service connection of disability or death resulting from drug abuse, and that direct service connection of disability or death may be established if the evidence shows that injury or disease resulted from tobacco use in line of duty during military, naval, or air service. During the March 4, 1993, Judicial Review Conference Call, VBA regional offices were advised to defer action on claims involving the use of tobacco products during active service and to maintain a log for control of the cases. Effective immediately, VBA regional offices have been told to pull and adjudicate all cases on that log. The Veterans Health Administration (VHA) C&P examiners should be aware that they will be receiving an increase in their workload for this reason.

2. Medical research has identified many diseases that may be potentially caused by the use of
tobacco products such as cigarettes, cigars, pipe tobacco, snuff, and chewing tobacco.
Disabilities that may be caused by cigarette smoking include, but are not limited to, cancer of the
lung, larynx and esophagus, coronary artery disease, atherosclerotic peripheral vascular disease,
emphysema, chronic bronchitis, and chronic obstructive pulmonary disease (COPD). Cancers of
the cheek and gum have been potentially linked with snuff and chewing tobacco. Medical
literature has also indicated a possible link between cigar and pipe smoking and cancers of the
lip, tongue, larynx, and esophagus. There may be other disabilities related to the use of tobacco
products.

3. VHA C&P examiners need to be aware that they will be requested to express an opinion on the relationship of tobacco use in service and current disability. Review of the claims folder will be necessary. Such an opinion must be supported by factual information about, and

IL 10-97-008
February 14, 1997

assessment of, all pertinent issues, including the following: the relationship of tobacco use to the specific disability claimed; the extent of tobacco use during service, as well as before and after service; the presence of other risk factors for the claimed disability and their relative importance as causal factors; the time of onset of the claimed disability; and, if applicable, the effect of cessation of smoking.

4. It is hoped that this information will be helpful to VA medical center staff, especially C&P examiners and their administrative staff, since the claims for these disabilities are now being processed. This information needs to be shared with all C&P examiners in order to make them aware of this new guidance and to prepare them to handle the influx of new claims.

GAO

January 1997

United States General Accounting Office

Report to the Chairman, Subcommittee
on Compensation, Pension, Insurance
and Memorial Affairs, Committee on
Veterans' Affairs, House of
Representatives

VA DISABILITY
COMPENSATION

Disability Ratings May
Not Reflect Veterans'
Economic Losses