Winning Service Connection For Smoking Related Disabilities
A few years ago in Santa Fe, New Mexico, Attorney Sean Kendall and I met with the family of a widow whose late husband served heroically in the Korean War. The widow was facing an uphill battle against the Department of Veterans’ Affairs to win entitlement to Dependency and Indemnity Compensation and accrued benefits, because VA had said the veteran’s death was not due to service-related causes.
At the time of his death, the veteran was service connected for Post-Traumatic Stress Disorder at a 70% rate. The veteran in question passed away at age 63 due to lymphoma caused by many years of addiction to cigarettes.
Service connection for cause of death, according to VA regulation, “will be established for [a] disability resulting from personal injury suffered or disease contract in line of duty.” Dependency and Indemnity Compensation (DIC) is awarded to a surviving dependent upon the service-connected death of a veteran. Most veterans, and even many veterans’ attorneys and advocates, do not know that smoking-related causes of death can be service connected if it is proven that service-connected disabilities such as PTSD caused addiction to smoking and/or make it difficult or impossible to quit.
El-Amin v. Shinseki, 26 Vet. App. 136 (2013) states that service connection for cause of death is permissible addiction to smoking was caused by a service-connected disability and the smoking cause or aggravated another disability.
Thus, we told the family that it would bepossible to prove that the veteran’s service-connected Post-Traumatic Stress Disorder caused his addiction to the cigarettes that gave the veteran terminal lymphoma. Rather quickly, an independent expert said that the veteran’s PTSD prevented him from quitting his addiction to cigarettes before it was too late, even after doctors raised serious concerns, and a subsequent VA medical opinion agreed that the veteran’s smoking had been associated with PTSD and PTSD impeded his ability to quit before it caused the condition that led to his death.
In less than a year, Attorney Kendall developed the case, completed a Board of Veterans’ Appeals hearing and won approximately $50,000 in retroactive benefits for the widow, plus around $1,200 a month in dependents’ benefits going forward. The Board's favorable decision can be read online here.
While VA does not grant claims for service connection directly based on the effects of tobacco abuse, a medical opinion linking this veteran’s PTSD with addiction to lymphoma-causing cigarettes ultimately won his case. The veteran was repeatedly told by doctors that his chronic smoking would cause disease and death, but his PTSD (brought on by military service)prevented him from quitting. After it was denied at the Regional Office, this was a clear case of presenting evidence and argument to the Board of Veterans’ Appeals, but it took an experienced veterans’ representative to get it done right and get it done quick.
If you or a loved one suffer from disabilities related to smoking and believe a service-connected disability such as PTSD either caused your addiction to smoking or made it worse, be sure to contact the office of Attorney Sean Kendall today at 303-449-4773.
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