PREC 6-2003 Service Connection for Cause of Disability or Death Citation: Vet. Aff. Op. Gen. Couns. Prec. 6-2003, VAOPGCPREC 6-2003, 2003

QUESTION PRESENTED:

Under 38 U.S.C. §§ 1103, 1110, and 1131, may service connection be established for a tobacco-related disability or death on the basis that the disability or death was secondary to a service-connected mental disability that caused the veteran to use tobacco products?

HELD:

Neither 38 U.S.C. § 1103(a), which prohibits service connection of a disability or death on the basis that it resulted from injury or disease attributable to the use of tobacco products by the veteran during service, nor VA’s implementing regulations at 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.  The questions that adjudicators must resolve with regard to a claim for service connection for a tobacco-related disability

alleged to be secondary to a disability not service connected on the basis of

being attributable to the veteran's use of tobacco products during service 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.  If these questions are answered in the affirmative, the secondary disability may be service connected.  Further, the secondary disability may be considered as a possible basis for service connection of the veteran’s death, applying the rules generally applicable in determining eligibility for dependency and indemnity compensation.