[Federal Register Volume 66, Number 67 (Friday, April 6, 2001)]
[Rules and Regulations]
[Pages 18195-18198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8490]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AJ59


Claims Based on the Effects of Tobacco Products

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations governing determinations of whether disability 
or death is service-connected. These changes are necessary to implement 
a statutory amendment providing that a disability or death will not be 
service-connected on the basis that it resulted from injury or disease 
attributable to a veteran's use of tobacco products during service.

DATES: Effective Dates: June 10, 1998.

FOR FURTHER INFORMATION CONTACT: Bill Russo, Regulations Staff, 
Compensation and Pension Service, Veterans Benefits Administration, 810 
Vermont Avenue, NW., Washington, DC 20420, telephone (202) 273-7210.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on February 16, 2000 (65 FR 7807-7809), we proposed to amend 
the adjudication regulations to provide that a disability or death will 
not be service-connected on the basis that it resulted from injury or 
disease attributable to a veteran's use of tobacco products during 
service. The comment period ended April 17, 2000. We received written 
comments from the Disabled American Veterans, the Paralyzed Veterans of 
America, the Veterans of Foreign Wars (Department of Maine), and four 
individuals. Based on the rationale set forth in the proposed rule and 
this document, we are adopting the provisions of the proposed rule as a 
final rule with changes discussed below.

Statutory Requirements

    Four commenters asserted that it would be wrong to preclude service 
members from service connection for disability or death based upon 
tobacco use during service because the military encouraged them to use 
tobacco products. One commenter asserted that the proposed regulations 
are unfair because the federal government has filed a lawsuit against 
the tobacco companies to recover the cost of smoking-related illnesses 
and VA should therefore provide compensation for smoking-related 
illnesses. We have made no changes based on these comments. The final 
rule merely reflects the statutory provision stating that a disability 
or death will not be service-connected on the basis that it resulted 
from injury or disease attributable to a veteran's use of tobacco 
products during service. (Section 9014(a) of the ``Internal Revenue 
Service Restructuring and Reform Act of 1998,'' Public Law 105-206, 
amended section 8202 of the ``Transportation Equity Act for the 21st 
Century,'' Public Law 105-178, by adding section 1103 to title 38, 
United States Code). We have no authority to change statutory 
provisions by regulation.
    Another commenter requested that the effective date of the proposed 
regulations be the date of publication of the final rule rather than 
June 9, 1998, as set forth in the proposed rule. We have retained the 
effective date of June 9, 1998, because this is the effective date 
imposed by statute (section 8202(c) of Pub. L. No. 105-178, as amended 
by section 9014(b) of Pub. L. No. 105-206). Again, we have no authority 
to change statutory provisions by regulation.

Definition of Tobacco Products

    We proposed to define ``tobacco products'' to mean ``cigars, 
cigarettes, smokeless tobacco, pipe tobacco, and roll-your-own 
tobacco.'' The term ``tobacco products'' is not defined in 38 U.S.C. 
1103. We based our proposed definition on provisions in the Internal 
Revenue Code (26 U.S.C. 5702(c)) that define tobacco products for 
purposes of levying excise taxes. The proposal stated that it was 
appropriate to rely on the definition in 26 U.S.C. 5702(c) because a 
rule of statutory construction provides that statutes that are in pari 
materia (relating to the same matter) should be construed together. 
Under this rule, the meaning of words in one statute may be determined 
by referring to another statute on the same subject matter in which the 
same words are used. Black's Law Dictionary 794 (7th ed. 1999).
    One commenter stated that the definition of ``tobacco products'' in 
section 3.300(a) is too broad because from the inception of the 
legislative proposal for 38 U.S.C. 1103, the concern was about the 
effects of smoking tobacco. In this regard, the commenter disagreed 
with VA's reliance on the definition of ``tobacco products'' in 26 
U.S.C. 5702(c), stating that the rule of statutory construction 
regarding statutes in pari materia does not apply because 26 U.S.C. 
5702(c) is unrelated to 38 U.S.C. 1103. In further support of his 
argument, the commenter noted that a heading on two VA budget proposals 
including this proposed legislation referred to ``Smoking-Related 
Disabilities,'' that the cost savings estimate in the FY 1999 budget 
was derived from a study regarding smoking-related diseases, and that a 
letter from the Office of Management and Budget (OMB) referred to the 
legislation as relating to ``smoking-related disabilities.''
    We agree, upon further consideration, that although 26 U.S.C. 
5702(c) and 38 U.S.C. 1103 deal with the same class of things, i.e., 
tobacco products, the statutes do not relate to the same subject

[[Page 18196]]

matter, i.e., excise taxes and veterans' benefits. Even so, for reasons 
stated below, we have retained our proposed definition in the final 
rule.
    We believe that our definition reflects Congress' intent. The title 
of the statutory provision actually enacted by Congress, which proposed 
section 3.300 implements, is ``Special provisions relating to claims 
based upon effects of tobacco products,'' not ``smoking related 
disabilities.'' In addition, the plain language of section 1103 rules 
out compensation for disability or death resulting from injury or 
disease attributable to ``use of tobacco products,'' not smoking. While 
the legislative history refers to smoking, the language of section 1103 
does not limit its applicability to claims for service connection based 
upon smoking tobacco but rather rules out service connection for injury 
or disease attributable to use of tobacco products. We do not believe 
that the title of the budgetary proposals which preceded enactment of 
section 1103 provides any guidance in this case with regard to 
Congress' intent. We note as well that the August 5, 1998, OMB letter 
to which the commenter referred states that awarding compensation for 
``tobacco-related'' illnesses that begin after service based solely on 
a veteran's ``tobacco use'' during service goes beyond the important 
purposes of the veterans'' disability compensation program.
    In addition, the effects of smoking tobacco about which the 
commenter contends the legislation was concerned are often the same as 
the effects of smokeless tobacco. There are two types of smokeless 
tobacco--snuff and chewing tobacco, and according to the National 
Cancer Institute, snuff and chewing tobacco contain 28 carcinogens and 
nicotine. NCI Fact Sheet: Questions and Answers About Smokeless Tobacco 
and Cancer--Updated 11/1997. Users of smokeless tobacco face an 
increased risk of many of the same cancers as those associated with 
smoking tobacco such as cancers of the oral cavity, larynx, and 
esophagus. NCI Fact Sheet; U.S. Dep't of Health and Human Servs., 
Reducing the Health Consequences of Smoking, A Report of the Surgeon 
General 38, 56 (1989). Further, a 1986 Surgeon General report concluded 
that, ``use of smokeless tobacco products can lead to nicotine 
dependence or addiction.'' U.S. Dep't of Health and Human Servs., The 
Health Consequences of Using Smokeless Tobacco, A Report of the 
Advisory Committee to the Surgeon General 182 (1986). If the purpose of 
38 U.S.C. 1103 is, as this commenter also contends, to prohibit service 
connection for postservice disabilities which can be related to service 
only by nicotine dependence that began in service, the inclusion of 
smokeless tobacco is in keeping with this purpose because nicotine 
dependence results from use of smokeless tobacco.

Dependency and Indemnity Compensation (DIC) Claims

    Proposed section 3.300(a) provides that, 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.
    One commenter stated that the proposed regulation does not make 
clear whether a claim for dependency and indemnity compensation (DIC) 
filed on or after June 9, 1998, based on a veteran's disability which 
was determined, prior to June 9, 1998, to be service-connected based 
upon the veteran's use of tobacco products during service is barred by 
38 U.S.C. 1103(a). The commenter pointed out that 38 U.S.C. 1103(a) 
refers to injury or disease which is ``attributable,'' rather than 
``attributed'' to use of tobacco products. The commenter contends that, 
if a veteran's service connection claim was granted prior to June 9, 
1998, the veteran's disability was ``attributed'' to use of tobacco 
products. The commenter stated that, if the veteran dies from the 
disability which was service connected prior to June 9, 1998, a post-
June 9, 1998, DIC claim would not be based on a disease or disability 
not yet ``attributed to'' tobacco use but ``attributable to'' tobacco 
use. Rather, according to the commenter, such a DIC claim would be 
based on a service-connected disability. This commenter recommended 
that if VA considers there to be any ambiguity in 38 U.S.C. 1103 on 
this point, VA should resolve this ambiguity in the veteran's favor.
    DIC is payable to certain survivors of ``any veteran [who] dies 
after December 31, 1956, from a service-connected or compensable 
disability.'' 38 U.S.C. 1310(a). DIC is also payable, in the same 
manner as if the veteran's death were service connected, to certain 
survivors of a veteran ``who was in receipt of or entitled to receive * 
* * compensation at the time of death for a service-connected 
disability'' continuously rated totally disabling for an extended 
period immediately preceding the veteran's death. 38 U.S.C. 1318(a) and 
(b). Section 9014(a) of Pub. L. No. 105-206 provided that section 1103 
``shall apply with respect to claims received by [VA]'' after June 9, 
1998. (Emphasis added). The unambiguous effect of this language is 
that, for a claim received after June 9, 1998, a disability or death 
which resulted from a disease or injury attributable to a veteran's use 
of tobacco products during service may not be considered service 
connected. See VAOPGCPREC 11-96; VAOPGCPREC 7-99. Section 9014(a) does 
not refer to facts found or adjudications made after that date, but 
specifies applicability to claims filed after that date. As noted 
above, section 1310(a) requires the death of a veteran from a 
``service-connected'' disability as a prerequisite to a survivor's 
entitlement to DIC. Section 1318(b) requires that a veteran have been 
in receipt of or entitled to receive compensation for a ``service-
connected'' disability at the time of death in order for a survivor to 
qualify for DIC under that provision. Thus, regardless of whether, for 
compensation purposes, service connection was legally established in a 
claim filed on or before June 9, 1998, for a disability resulting from 
the use of tobacco products during service, the effect of section 
9014(a) is that such disability may not be considered service connected 
with respect to a DIC claim filed after that date.
    With regard to the commenter's reliance on use of the word 
``attributable'' rather than ``attributed'' in 38 U.S.C. 1103(a) and 
proposed 38 CFR 3.300(a), the word ``attributable'' is defined by 
Webster's Third New International Dictionary of the English Language 
141 (1981), to mean ``capable of being attributed.'' Thus, under 
section 1103(a), if a veteran's service-connected disability or death 
is capable of being attributed to the use of tobacco products, service 
connection is precluded. A veteran's disability which was 
``attributed'' to use of tobacco products during service prior to June 
9, 1998, would necessarily be ``capable of being attributed'' to use of 
tobacco products. Therefore, use of the word ``attributable'' does not 
support the commenter's conclusion that a DIC claim filed after June 9, 
1998, based upon a veteran's disability which was attributed to tobacco 
use during his or her lifetime is not precluded by section 1103(a).

Secondary Service Connection

    Section 3.300(c) of the proposed regulations provides that, for 
claims 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 of the veteran's use of tobacco products 
during service will not be service-connected. We also proposed to amend 
section 3.310(a) concerning secondary service connection to provide

[[Page 18197]]

that it is subject to the provisions of section 3.300(c).
    One commenter stated that section 3.300(c) of the proposed 
regulation violates the intent of 38 U.S.C. 1103 that claims for 
secondary service connection based on a disability which was service-
connected due to tobacco use in service before June 10, 1998, are not 
barred by 38 U.S.C. 1103. The commenter stated that service connection 
on a secondary basis relies only on its link to the primary condition, 
already lawfully service-connected, without regard to the cause of the 
primary disability. Therefore, the commenter contends a claim for 
service connection for a disability which is proximately due to a 
disability which was service connected based on the veteran's tobacco 
use would not be precluded by section 1103 because the cause of the 
service-connected disability would not be relevant. This commenter also 
asserted that proposed section 3.300(b)(3), which provides that section 
3.300(a) does not apply where secondary service connection is 
established for ischemic heart disease or other cardiovascular disease 
under section 3.310(b) is superfluous based upon the contention that 38 
U.S.C. 1103(a) only bars claims for direct service connection, not 
claims for secondary service connection.
    We disagree with the commenter's contention that a claim for 
secondary service connection is not based upon the cause of the 
disability which was originally service connected. As explained in the 
notice of proposed rulemaking, 65 FR 7807-7808 (Feb. 16, 2000), 38 CFR 
3.310(a) provides for service connection of a disability not itself 
incurred or aggravated in service but nevertheless resulting from a 
disease or injury incurred or aggravated in service. Secondarily 
service-connected disabilities are the result of service-incurred or 
service-aggravated injury or disease. When a disability is proximately 
due to or the result of an injury or disease previously service 
connected on the basis of a veteran's use of tobacco products during 
service, the secondary condition results from a disease or injury 
attributable to the use of tobacco products.
    The commenter cites a March 24, 1998, letter from the Acting VA 
General Counsel to House Veterans Affairs Committee Staff, to support 
the view that claims for secondary service connection are not barred by 
38 U.S.C. 1103(a). The Acting General Counsel's letter stated that an 
Administration-proposed version of section 1103(a), which was not 
enacted, would have barred service connection for disabilities 
``attributable in whole or in part'' to tobacco use, would have only 
precluded service connection on the basis that disability resulted from 
tobacco use and ``would not preclude establishing service connection on 
any other basis.'' The Acting General Counsel's letter does not provide 
support for the commenter's contention that VA's contemporaneous 
construction of its own language indicates that service connection of 
tobacco-related disabilities on the basis of 38 CFR 3.310(a) was not 
meant to be barred by 38 U.S.C. 1103(a). Apart from the fact that the 
letter reflects the Acting General Counsel's understanding of proposed 
legislative language which was not adopted by Congress, the statement 
is consistent with the interpretation reflected in section 3.300(b) 
that 38 U.S.C. 1103 was not intended to prohibit service connection on 
a basis independent of tobacco use in service. A proximate connection 
to a disability attributable to tobacco use in service would not 
provide such a basis.
    The commenter also contends that 38 U.S.C. 1103(a) was intended to 
preclude claims for service connection for postservice disabilities 
related to service only as a result of nicotine dependence which began 
in service. We find no evidence of such a limitation in the legislative 
history of section 1103. As the Acting Secretary of Veterans Affairs 
explained in his February 4, 1998, testimony before the House Veterans' 
Affairs Committee and March 31, 1998, testimony before the Senate 
Veterans' Affairs Committee, section 1103 was intended to preclude 
service connection for disabilities arising postservice and after any 
applicable presumptive period if the only connection between the 
disease and military service is the veteran's own use of tobacco 
products during service. None of the legislative history cited by the 
commenter refers to precluding service connection for postservice 
disabilities only when these disabilities are due to nicotine 
dependence.
    Finally, the commenter asserted that it would be unfair to 
compensate veterans who were service-connected for a tobacco-related 
disability before June 10, 1998, when that disability worsens over 
time, while at the same time denying secondary service connection for a 
disability proximately due to the original service-connected one. The 
commenter states that both are ``a natural extension'' of the service-
connected disability. We disagree. A claim for an increased rating is 
predicated on the particular disability which was service connected. A 
claim for secondary service connection is based upon a new disability 
which is proximately due to or the result of the original service-
connected disability.
    Based on the above analysis, we make no change based on these 
comments.

Disability Becoming Manifest During Active Duty

    Section 1103(b) title 38, United States Code, provides in pertinent 
part that service connection is not prohibited ``for disability or 
death from a disease or injury which is otherwise shown to have been 
incurred or aggravated in active military, naval, or air service.'' 
Proposed section 3.300(b)(1) similarly states that service connection 
is not prohibited if ``[t]he disability or death resulted from a 
disease or injury that is otherwise shown to have been incurred or 
aggravated during service.'' One commenter stated that Congress 
intended that the term ``otherwise shown'' in section 1103(b) include 
any disability or death from a disease or injury which became manifest 
or was aggravated during service, or manifest during a presumptive 
period, even if it resulted from tobacco use. The commenter recommended 
that VA's regulation be amended to specify this. The commenter 
suggested that, unless the term ``otherwise shown'' is clearly defined 
by the regulation, VA regional office adjudicators may misinterpret and 
misapply it.
    Regarding the definition of ``otherwise shown,'' we believe it was 
intended to convey that 38 U.S.C. 1103 generally precludes 
establishment of service connection for a disability or death on the 
basis that it resulted from injury or disease attributable to the 
veteran's use of tobacco products. However, a review of the legislative 
history reveals an additional purpose behind 38 U.S.C. 1103(b): To 
permit claims where the disability manifests while on active duty, even 
if they are based on tobacco use. In our view, 38 U.S.C. 1103 was not 
intended to affect a veteran's ability to establish service connection 
on the basis of any legal presumption, including both statutory and 
regulatory presumptions. Therefore, section 3.300(b) in the proposed 
regulations provided that section 3.300(a) does not prohibit service 
connection for a disability or death if it resulted from a disease or 
injury otherwise shown to have been incurred or aggravated during 
service, or that became manifest to the required degree of disability 
within a period that establishes eligibility for a presumption of 
service connection under 38 CFR 3.307, 3.309, 3.313, or 3.316, or that 
may be service-connected under Sec. 3.310(b).
    We agree, however, that clarification would be helpful and have 
therefore

[[Page 18198]]

amended proposed section 3.300(b)(1) to state that, ``[f]or 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.''

Injuries From Tobacco Use

    One commenter recommended that the proposed section 3.300 be 
amended to include a definition of the term ``injury,'' so that the 
regulation would not bar service connection claims based on an 
incidental or accidental injury arising out of tobacco use, such as a 
burn. The commenter noted that the ``otherwise shown'' exception in 
proposed section 3.300(b) permits service connection for injuries 
attributable to tobacco use which occur during service but nonetheless 
stated that the regulation invites misinterpretation without this 
clarification.
    We believe that the clarification to section 3.300(b)(1) described 
above regarding the term ``otherwise shown'' is sufficient to address 
the commenter's point. We therefore make no other change based on this 
comment.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

    This final rule has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of this final rule 
will not have a significant economic impact on a substantial number of 
small entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The reason for this certification is that this final 
rule will not directly affect any small entities. Only individuals 
could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), 
this final rule is exempt from the initial and final regulatory 
flexibility analyses requirements of sections 603 and 604.

    The Catalog of Federal Domestic Assistance program numbers are 
64.109 and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: February 5, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR part 3 is amended 
as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

    1. The authority citation for part 3, subpart A continues to read 
as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. Section 3.300 is added immediately under the undesignated center 
heading ``Ratings and Evaluations; Basic Entitlement Considerations'' 
to read as follows:


Sec. 3.300  Claims based on the effects of tobacco products.

    (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 Secs. 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 Sec. 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 Sec. 3.310(a).

(Authority: 38 U.S.C. 501(a), 1103, 1103 note)


    3. In Sec. 3.310, paragraph (a) is amended by removing 
``Disability'' and adding, in its place, ``Except as provided in 
Sec. 3.300(c), disability''.

[FR Doc. 01-8490 Filed 4-5-01; 8:45 am]
BILLING CODE 8320-01-P