NO DISABILITY BENEFITS FOR VETS WHO SMOKED

Troops in Vietnam were given cigarettes in their C-rations

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.

"In the packet with the napkins there would always be a package of four
cigarettes -- Newports, Chesterfields, Lucky Strikes, Winstons, Pall Malls
or another one of the brands of the time," he said.

Blecker says cartons of cigarettes were also dropped by helicopter to
soldiers on long-range reconnaissance missions.

"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.

"It's ironic, it's unfair, and, to understate the situation, it's in very
bad grace for the government to say: "We've tracked this (smoking and
health) problem down pretty far, and we're certainly going to hold the
tobacco industry responsible -- but when it comes to our own responsibility,
forget it,'C7" he said.

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 -- 350,00 over the next five
years -- and swamped with $17 billion in bills if the agency followed the
ruling.

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.

Sen. Jay Rockefeller, D-W.Va., 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 Don Marshall, a spokesman
for Rockefeller.

"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.

The VA's regional office in Oakland has 250 pending claims.

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.

However, 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. "These
are extremely difficult cases to win, because they have such a difficult
evidentiary burden. They're so difficult to prove, and as an attorney, I
know they're difficult for the VA to analyze. 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 says.

"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. "It's completely arbitrary."

Ewing is helping James Epps, a 54-year-old 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, 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. "That was
part of the initiation ritual of Marine boot camp -- learning how to smoke
and be a tough guy."

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.

Veterans with smoking disorders may also obtain free VA medical care if they
fit into one of six priority groups -- for example, if they are disabled
from another injury or illness, are former prisoners of war, or are
impoverished.

Otherwise, they are charged co-payments, said Dr. Josh Adler, assistant
chief of staff at the San Francisco VA Hospital.

But they will never be turned away, Adler said. "Any veteran can always get
medical treatment here," Adler said. "If they don't have a service-connected
illness and do not fit into one of the priority groups, we will still
provide the care, but we are obligated to send them a bill."

1998 San Francisco Examiner

Checked-by: Rolf Ernst