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In 1998, Congress enacted 38 U.S.C.S. 1103, which provides that a veteran's disability or death will not be considered service connected "on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during the veteran's service." 533 This means that veterans cannot rely upon tobacco use during the period of service to satisfy the in-service precipitating event requirement. It also means that the required medical evidence of a link or nexus between the veteran's current disability and the veteran's military service cannot depend upon the veteran's use of tobacco during the veteran's period of service. The VA defines "tobacco products" to mean "cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco." 534

Section 1103 does not preclude service connection for a disability or death "which is otherwise shown to have been incurred or aggravated" in service or "which became manifest to the requisite degree of disability during any applicable presumptive period." 535 This allows service-connected disability benefits to be granted under existing rules that do not depend upon a showing of a nexus between the condition and the use of tobacco products --- such as where the disability arose during the veteran's service or during a presumptive period. Service connection may also be obtained for conditions that are sometimes attributed to tobacco use where the medical evidence links the disability to another in-service source.

This statute does not mean that veterans cannot receive disability compensation for disabilities that were probably caused by the veteran's use of tobacco. It only means that the VA is prohibited from granting disability compensation because the disability in question was probably caused by the veteran's use of tobacco. In other words, veterans can receive disability compensation for a disability that was probably caused by tobacco use as long as (1) they do not rely on the fact they used tobacco in presenting their claims, and (2) the evidence presented satisfies the three requirements for disability compensation benefits discussed in this chapter.

The following two examples illustrate this point. A veteran who served in the Army from 1969 to 1971, including a tour in Vietnam, develops lung cancer in 2003 and applies to the VA for disability compensation for his lung cancer. Although it is true, the veteran chooses not to submit evidence to the VA revealing that he became addicted to cigarettes shortly after he was discharged from service, he smoked an average of two packs a day over the last 30 years, and was told by his private physician that he believes that the veteran's smoking habit caused his lung cancer.

A veteran who retired from the Air Force in 1999, after 20 years of service, is diagnosed with lung cancer shortly after her discharge. She applies to the VA for disability compensation for lung cancer and submits a statement from her private oncologist (a physician who is an expert in cancer treatment) that explains that the veteran currently has lung cancer, that tests show it is in an advanced stage, and that based upon the normal course at which lung cancer develops, it is the oncologist's opinion that the veteran had lung cancer during the late stages of her service in the Air Force. Although it is true, the veteran does not submit any evidence to the VA revealing that she became addicted to cigarettes shortly after enlisting in the Air Force, she smoked an average of two and a half packs a day over the last 19 years, and her oncologist told her that the veteran's smoking habit caused her lung cancer.

Despite the 38 U.S.C.S. 1103 bar to benefits, both veterans qualify for VA disability compensation. If the Army veteran simply proves that he currently has lung cancer or its residuals to a degree of 10 percent disabling or more, the VA will award him disability compensation for lung cancer under its presumptive service connection regulations based upon Agent Orange exposure. 536 The Air Force veteran qualifies for disability compensation because her oncologist's statement provides the required nexus to service under the direct service connection method. 537

It is true that VA regulations allow the VA to deny the Army veteran's claim if the evidence in the record were to show that the veteran's post-service use of tobacco caused the lung cancer. 538 But veterans generally do not volunteer evidence to the VA that the disease in question may have been caused by something that occurred outside the period of military service, and the VA generally does not try to develop such evidence unless the evidence in the record already suggests such a non-service-connected cause. 539

Section 1103 applies to any service-connected disability claim filed after its enactment date of June 9, 1998. Claims for disabilities attributed to the use of tobacco products that were filed on or before June 9, 1998, should be decided under the preexisting statutes and regulations. 540

The bar to service connection also applies to deaths attributed to tobacco use and affects dependency and indemnity compensation (DIC) claims received by the VA after June 9, 1998. 541 For these claims, a 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. This is true even if the veteran's death was due to a disability that was legally service connected during the veteran�s lifetime through a claim filed before June 9, 1998. 542 As long as the DIC claim is filed after June 9, 1998, service connection for a death that resulted from in-service use of tobacco products is barred. 543 A death that is "otherwise shown to have been incurred" in service can be service connected in the same way as the disabilities in the above examples. 544

However, because an accrued benefits claim is not an original claim independent of the veteran's underlying claim, but results entirely from a veteran's claim, 545 it is possible for a survivor to receive accrued benefits in certain very limited circumstances. In the case of Sheets v. Nicholson, 546 a veteran filed a claim in September 1997 for service connection for lung and cerebellum cancer secondary to nicotine dependence acquired on active duty. He died on May 31, 1998, while his claim was still pending, and his widow filed a claim for DIC and accrued benefits on June 17, 1998. The Court found that, had he lived, the veteran would have been awarded service connection for lung cancer caused by his use of tobacco in service because his claim was filed before the June 9, 1998 cut-off date. Therefore, based on the evidence in the claims file at the time of the veteran's death, he was entitled to service connection and was owed disability compensation (accrued benefits) at the time of his death. The Court held that 38 U.S.C.S. � 1103 did not bar the widow's entitlement to accrued benefits, even though her accrued benefits claim was filed after June 9, 1998. The widow's claim for DIC was denied because it was barred by section 1103.

Section 1103 also bars secondary service connection in claims received after June 9, 1998, where the veteran alleges a new disability is due to a disability that was previously service connected on the basis of the veteran's use of tobacco products during service. 547 This means, for example, that a veteran who received service connection for lung cancer before Section 1103 went into effect, solely on the basis that it that was caused by smoking during service, cannot be granted secondary service connection for the depression he now experiences as a result of his service-connected lung cancer.

Secondary service connection for tobacco-related diseases is not completely barred. The VA General Counsel held in a precedent opinion, VA. Gen. Coun. Prec. 6-2003, (Oct. 28, 2003), that neither 38 U.S.C.S. 1103(a) nor its implementing regulation 38 C.F.R. 3.300 "bar a finding of secondary service connection for a disability related to the veteran's use of tobacco products after the veteran's service, where that disability is proximately due to a service-connected disability that is not service connected on the basis of being attributable to the veteran's use of tobacco products during service." This means for example, that a combat veteran who is service-connected for post-traumatic stress disorder (PTSD) due to trauma experienced during combat and who begins smoking after service in order to calm his PTSD symptoms and develops lung cancer as a result of his post-service smoking can receive secondary service connection for lung cancer. The factors to be considered in granting this type of secondary claim are: "(1) whether the service-connected disability caused the veteran to use tobacco products after service; (2) if so, whether the use of tobacco products as a result of the service-connected disability was a substantial factor in causing a secondary disability; and (3) whether the secondary disability would not have occurred but for the use of tobacco products caused by the service-connected disability." 548 If the answer to all of these questions is favorable to the veteran, the secondary disability can be service connected. This method of secondary service connection may also be considered for service connecting a veteran's death. 549 Secondary service connection is discussed further in Section 3.4.6.

533. The VA regulation to implement 38 U.S.C.S. 1103 is at 38 C.F.R. 3.300 (2007).

534. 38 C.F.R. 3.300(a) (2007).

535. 38 U.S.C.S. 1103(b). The VA clarified the meaning of the phrase �otherwise shown� from Section 1103 in 38 C.F.R. 3.300(b) (2007), which states:

536. The VA's regulations governing disability and death benefit claims based upon exposure to Agent Orange and other herbicides used in "Vietnam" are discussed in Section 3.8.

537. Direct service connection is discussed in Sections 3.4.2 and 3.4.3.

538. See 38 C.F.R. 3.307(d), 3.309(e) (2007). See also Davis v. West, 13 Vet. App. 178, 184 (1999) ("[E]ven in cases where a disability is presumed service connected because of in-service exposure to ionizing radiation or Agent Orange, an intercurrent cause can rebut the presumption of service connection.").

539. Some people may believe from an ethical and moral viewpoint that veterans should not file claims for VA benefits under these circumstances and advocates should not help them obtain benefits under these circumstances. Others may believe that the ethical and moral thing to do is to submit evidence on the relation of tobacco use to the disability even though it could seriously damage the chance of success on the claim. Part of the equation in evaluating these types of ethical and moral dilemmas, at least with respect to disabilities that may be related to tobacco use, is that what actually caused a particular individual to develop a particular cancer is quite an inexact science. Just because one physician�s best guess is that tobacco use caused a particular person�s lung cancer does not necessarily mean that the physician is correct.

Moreover, Congress intentionally worded 38 U.S.C.S. 1103 so that veterans whose disabilities were probably caused by tobacco use would still qualify for benefits. The initially enacted statute was amended by Congress to specifically provide that the statute does not bar benefits if a veteran can satisfy the requirements of the existing methods of establishing service connection that do not rely upon tobacco use. The impetus to the legislation was to stop veterans from being able to successfully rely upon tobacco use in service as the reason that their disability is related to the period of military service. The legislation was not designed to encourage the VA to investigate whether claimed disabilities were caused by tobacco use.

540. For advocacy advice on tobacco-related claims filed before June 9, 1998, see VA Copes with Claims Based on Tobacco Use, The Veterans Advocate 113 (1997). An example of one such long pending claim is found in Parker v. Principi, 15 Vet. App. 407 (2002).

541. Stoll v. Nicholson, 401 F.3d 1375 (Fed. Cir. 2005); Kane v. Principi, 17 Vet. App. 97 (2003).

542. See Stoll, 401 F.3d at 180-81.

543. 66 Fed. Reg. at 18,196. Further information on DIC benefits is contained in Chapter 7 of this Manual.

544. 38 U.S.C.S. 1103.

545. Zevalkink v. Brown, 102 F.3d 1236, 1241-42 (Fed. Cir. 1996).

546. 20 Vet. App. 463 (2006).

547. 66 Fed. Reg. at 18,196-97. See 38 C.F.R. 3.300(c), 3.310 (2007). Further information on secondary service connection is contained in Section 3.4.6.

548. VA. Gen. Coun. Prec. 6-2003 (Oct. 28, 2003).

549. Id.