Government changes disability policy for GI smokers

By Kathleen Sullivan, San Francisco Examiner Copyright 1998 The Plain Dealer September 7, 1998

During the Vietnam War, the U.S. government tucked miniature packs of cigarettes into boxed meals for combat soldiers and dropped cartons of cigarettes by helicopter to troops on long-range reconnaissance missions in the jungle.

About 30 years later, the government has decided those soldiers "smoked on government time" and has prohibited them from receiving disability payments if they developed lung cancer, emphysema or other diseases from smoking.

A law banning disability pay for ailments tied to tobacco use was added as an amendment to the 800-page Transportation Equity Act for the 21st Century. The bill was signed by President Clinton in June.

The Department of Veterans Affairs requested the law, which amends federal statutes governing veterans benefits.

"The VA believes veterans compensation benefits were designed to assist veterans who become ill or are injured in service to their country," said Ozzie Garza, a VA spokesman. "It goes beyond the government's responsibility to pay compensation for veterans just because they smoked on government time."

Michael Blecker, executive director of Swords to Plowshares, a San Francisco veterans rights group, says it is ironic that the government has decided to deny smoking disability claims given its role as a purveyor of cigarettes.

Blecker, who served two years in Vietnam, says the military tucked tiny cigarette packs in every C-ration box, which contained the canned meals soldiers ate in the field.

"If you were 18 or 19 years old, you could pick up a habit big time," said Blecker, who started smoking in Vietnam and quit several years later. "They were free in the field, and back in the PX they were very, very cheap."

The military discontinued the practice in 1975, eight years after the U.S. surgeon general issued a report saying smoking was the principal cause of lung cancer.

"Sure, a lot of veterans have [medical] conditions as a result of that practice," said VA spokesman Ken McKinnon, "but the VA's position is that the government cannot be held responsible for all the sins of smoking."

Richard Daynard, chairman of the Tobacco Products Liability Project, a public health advocacy group at Northeastern University in Boston, says the ban on smoking claims is an "ugly response" by a government unwilling to take responsibility for its actions.

Tobacco industry documents made public in recent years have shown that cigarette companies knew 30 years ago that nicotine was addictive and that smoking caused numerous health problems. But the industry hid the evidence from the public.

In 1993, a legal opinion by the VA's general counsel opened the door to smoking claims from veterans. But the agency didn't begin processing most of the cases until 1997, when another opinion clarified the ground rules for granting benefits.

In the 1997 opinion, VA general counsel Mary Lou Keener said the agency should approve the claims if three conditions were met: if nicotine dependence was a disease; if veterans started smoking while they were in the service; and if smoking was considered the cause of the disability or death.

The opinion immediately raised financial concerns at the VA, which began lobbying Congress to change the law.

The VA said it would be deluged with claims and swamped with $17 billion in bills if the agency followed the ruling.

Preference on claims

The VA delivered a draft bill prohibiting such claims to House Speaker Newt Gingrich on March 30, and within two months the ban became part of the massive highway bill. While the House and Senate veterans affairs committees had held hearings to discuss the possibility of banning claims, they did not conduct hearings on the veterans smoking amendment after it was attached to the highway bill.

Democratic Sen. Jay Rockefeller of West Virginia, the ranking minority member on the Committee on Veterans Affairs, tried to kill the amendment as the highway bill made its way through Congress, but was thwarted, said spokesman Don Marshall.

"Sen. Rockefeller objected to the fact that they were robbing from veterans programs to offset the cost of highway spending," Marshall said.

The VA's McKinnon says the agency is processing cases filed before the law was enacted and reviewing rejected claims.

By June, the VA had received 8,830 smoking claims from veterans, or from their surviving spouses or children, he says.

Of the 4,977 cases the VA has decided, the agency has denied 4,618 claims and awarded payments in 359, he says.

McKinnon says the VA expects to approve most of the 8,830 claims filed before the new ban went into effect, even those already denied. A majority of the rejected claims were missing documents that veterans should be able to provide when they resubmit their claims, he says.

But no new claims will be accepted now that Congress has changed the law, McKinnon says.

David Ewing, managing attorney at Swords to Plowshares, was stunned to hear that most of the previous claims will be accepted.

"That's unbelievable," said Ewing, who helps veterans file claims. "The idea that nearly all of the claims would be awarded benefits would be preposterous."

If it's true, the situation would be "staggeringly unfair" to veterans with smoking disorders who didn't file claims before the statute was changed, Ewing said.

"It's almost like a reward for people who made a deadline and punishment for those who didn't even though no one knew what the deadline would be," he said.

Ewing is helping James Epps, 54, a Vietnam veteran with emphysema and chronic obstructive pulmonary disease, fight for benefits. Epps filed his claim in 1997.

"James should be rated 100 percent disabled," Ewing said. "He's extremely ill. He has a legitimate claim. But will it go his way or not? It's hard to know what the VA will do. It's an uphill battle."

Epps, speaking from his bed at a VA hospital in Martinez, Calif., where he is awaiting lung surgery, says he started smoking at 18 at a Marine Corps boot camp, where a cigarette break was a reward for a job well done.

"When we did well, our drill instructor allowed us to march to the corner of the parade deck and stand at ease and have a smoke," Epps said.

Ewing says the prohibition on smoking claims threatens to undermine confidence in the VA's compensation system. "If smoking claims can be denied because they're deemed too expensive, what else can be deemed too expensive?" he asked.

The VA's monthly disability payments range from $95 (10 percent disabled) to $1,964 (100 percent disabled), and are meant to compensate for the loss of working ability.

If disability claims are approved, veterans win a coveted "service connection" rating, which guarantees free VA medical care. "That's really why they're so important," Ewing said.

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