Although the VA provides for the use of direct service connection in VA claims for a wide variety of disabilities, there is one glaring exception: veterans may not claim a service connection for any conditions caused by tobacco use during periods of military service. Under no circumstances can tobacco consumption by any method be used in the nexus of evidence for VA claims. This rule also applies to survivors seeking benefits after a veteran has passed away due to a tobacco-related illness.
However, this restriction is not quite as ironclad as it sounds. Although the VA cannot grant a service connection for disabilities that depend on tobacco use to prove linkage, it is possible for claimants to receive veterans benefits for tobacco-related conditions through other strategies.
If the disability for which you’re seeking veterans benefits could conceivably be eligible for a service presumption that doesn’t require providing a nexus of evidence, such as the service connection by legal presumption, you may still be able to make a successful case. This boils down to whether it’s possible to make your case without a private physician’s opinion.
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For example, if you can use the service connection by legal presumption for a diagnosis of lung cancer due to Agent Orange exposure and won’t need to provide a physician’s opinion in your case, it is possible to game the system and receive benefits even if your doctor is convinced that your lung cancer was caused by smoking.
There is also a loophole regarding the use of secondary service connection for conditions caused by tobacco use. In the rare cases where a veteran took up smoking to calm the symptoms of a service-connected ailment (such as PTSD or another anxiety disorder) and then developed a condition because of this tobacco use, the veteran may be eligible for benefits. The case may be ruled in the veteran’s favor as long as he or she can prove the following:
1.) The condition that caused the tobacco use was service-connected.
2.) The use of tobacco products was a major cause of the secondary disability.
3.) The secondary disability wouldn’t have manifested had it not been for the use of tobacco products
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As always, it is strongly recommended that you hire a qualified VA disability lawyer before beginning to develop the evidence for your case. The rules and restrictions that affect VA disability claims are notoriously difficult to parse, so it’s always a good strategy to have an experienced attorney on your side.
For more information on VA claims visit our website or call 800-562-9830 today to discuss your partial disability claim. Be sure to download a copy of our free e-book.
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