(a) For claims received by VA after June 9, 1998, a disability or 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. For the purpose of this section, the term “tobacco products” means cigars, cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own tobacco.
(b) The provisions of paragraph (a) of this section do not prohibit service connection if:
(1) The disability or death resulted from a disease or injury that is otherwise shown to have been incurred or aggravated during service. For purposes of this section, “otherwise shown” means that the disability or death can be service-connected on some basis other than the veteran's use of tobacco products during service, or that the disability became manifest or death occurred during service; or
(2) The disability or death resulted from a disease or injury that appeared to the required degree of disability within any applicable presumptive period under §§ 3.307, 3.309, 3.313, or 3.316; or
(3) Secondary service connection is established for ischemic heart disease or other cardiovascular disease under § 3.310(b).
(c) For claims for secondary service connection received by VA after June 9, 1998, a disability that is proximately due to or the result of an injury or disease previously service-connected on the basis that it is attributable to the veteran's use of tobacco products during service will not be service-connected under § 3.310(a).
(Authority: 38 U.S.C. 501(a), 1103, 1103 note)
[66 FR 18198, Apr. 6, 2001]
Notes of Decisions
Cited in
20
cases (
1 in the last 5 years), 2003–2021 · leading case:
Kane v. Principi, 17 Vet. App. 97 (Vet. App. 2003).
Kane v. Principi, 17 Vet. App. 97 (Vet. App. 2003).
· cites it 18× “The Board also cited to the corresponding regulation, 38 C.F.R. § 3.300 (2001) ( 66 Fed. Reg. 18,195 (2001)).”
Pamela R. Sheets v. R. James Nicholson, 20 Vet. App. 463 (Vet. App. 2006).
· cites it 2× “See 38 C.F.R. § 3.300 (a) (2005). It neither affects veterans who established service connection prior to the statute’s enactment date, nor serves as an obstacle to those with pending tobacco-related claims that VA received by June 9, 1998.”
Stoll v. Nicholson (Fed. Cir. 2005).
· cites it 2× “On reconsideration, however, the Board denied the service connection and agreed with the RO that § 1103(a) and its implementing regulation, 38 C.F.R. § 3.300 (a), prohibited service connection for death attributable to a veteran’s in-service tobacco use.”
07-33 612 (Board of Vet. App. 2014).
· cites it 2× “See 38 C.F.R. § 3.300 (b)(2). Because a disease may not be service-connected on the basis of tobacco use, even if that tobacco use occurred during service, the preponderance of the probative evidence in this case weighs against the claim of service connection for COPD, and the…”
13-00 170 (Board of Vet. App. 2015).
· cites it 2× “38 C.F.R. § 3.300 (a). Service connection is not prohibited, however, if the disability resulted from a disease that can be service-connected on some basis other than the use of tobacco products during service, or if the disability became manifest during service, or to the…”
05-10 800 (Board of Vet. App. 2015).
· cites it 2× “§ 1103 (a); 38 C.F.R. § 3.300 (a). This provision does not preclude the establishment of service connection for a disability or death from a disease or injury which is otherwise shown to have been incurred or aggravated in military, naval, or air service or which became manifest…”
11-17 285 (Board of Vet. App. 2015).
· cites it 2× “§ 1103 ; 38 C.F.R. § 3.300 (2015); Sabonis v. Brown, 6 Vet.”
10-17 623 (Board of Vet. App. 2016).
“38 C.F.R. § 3.300 (a). Thus, service connection cannot be granted for COPD based on this smoking history.”
07-33 167 (Board of Vet. App. 2017).
“§ 1103 (West 2014); 38 C.F.R. § 3.300 (2016). Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's respiratory disorder is causally related to his service.”
181010-534 (Board of Vet. App. 2019).
“§ 1155 , 5107; 38 C.F.R. § 3.300 . 2. The criteria for an initial disability rating in excess of 30 percent from December 14, 2015, for evaluation of other specified trauma and stress related disorder (claimed as PTSD and previously under DC 9411), have not been met.”
200619-94153 (Board of Vet. App. 2021).
“§ 1103 (a), nor its implementing regulations at 38 C.F.R. § 3.300 , bar a finding of secondary service connection for a disability related to use of tobacco products after service.”
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