What Is He Saying Here?

[free_spirit_etc]

This is actually from one of my IMOs

"The 100 or so pages of records that I have reviewed clearly show that he was separated from the US Air Force on 9/30/98 at a time when he manifested no symptoms from his left lower lobe lung cancer (although Ms XXXXX has indicated that he complained of fatigue at the time of his discharge which can be a prominent symptoms of lung cancer). A chest x-ray done on 6/24/96 was read as unremarkable. A physical exam performed at the time of his separation from the service cannot be found at this time."

Does it sound like he is saying that my husband's reported fatigue could be related to his cancer? I actually think that he is saying that he manifested no symptoms -- but that he reported fatigue and that could be a symptom. (i.e. he manifested no apparent symptoms expect for possibly fatigue).

But since he stated it the way he did -- especially with parenthesize - the VA could also take it to mean - He manifested no symptoms - and even though he reported fatigue, and fatigue is a prominent symptom of lung cancer (i.e. he did not manifest any symptoms)

I am wondering about that before I start finalizing my argument. I also wonder if I should write and ask him to clarify the statement -- and see about adding an addendum to his IMO that expands on the fatigue a bit.

[Philip Rogers]

I believe he's saying that the fatigue that Ms XXXXX indicated can be a prominent symptom of lung cancer. I believe it would be better if he clarified his statement more. According to your statement Ms XXXXX reported the fatigue not your husband. I interpret it to mean fatigue can be a prominent symptom of the lung cancer. jmo

pr

[free_spirit_etc]

Thanks PR.

I agree the statement says I reported to him my husband reported fatigue. But my husband actually reported fatigue to the VA upon his discharge. But he thought it was from GWI. He retired in 1998 and the Fatigue C&P exam was in April 1999. They just said he did not meet the standard of CFS, but didn't attribute his fatigue to anything. He was re-evaluated in 2003, and at that time they said he had CFS, but attributed it his "depression." They had to figure out a diagnosis, since they didn't want to leave it hang as an undiagnosed illness - so they had a Mental C&P. They gave him the Beck Depression Inventory, and he marked:

• Feeling no real satisfaction
• Loss of interest
• Feeling unattractive
• Difficulty making decisions
• Needing to push hard to accomplish things
• Tiring easily

Basically, he was fatigued, and so he marked all the things that said he was fatigued (tired all the time, loss of interest, needing to push harder, etc.)

So they diagnosed him with depression -- and said his depression was the cause for fatigue.

It seems kind of like circular reasoning to me. By 2003, he had lung cancer, emphysema, interstitial lung disease, arthritis, and sleep apnea -- and they decided he was tired all the time because he was depressed. because he marked that he was tired, had to push, etc. on the BDI.

It was even odd that they went ahead and diagnosed his fatigue as secondary to depression AND noted that he was scheduled for a sleep study the following day (which showed he had a 37% sleep efficiency).

So there were probably lots of causes for his fatigue, besides "depression" -- but he definitely complained of fatigue to the VA when he retired, and was evaluated for it within his presumptive period. You would have to meet the standards of CFS to be diagnosed with CFS, but you wouldn't necessarily need to have that level of fatigue for your fatigue to be a manifestation of another disease.

[Philip Rogers]

"So there were probably lots of causes for his fatigue, besides "depression" -- but he definitely complained of fatigue to the VA when he retired, and was evaluated for it within his presumptive period. You would have to meet the standards of CFS to be diagnosed with CFS, but you wouldn't necessarily need to have that level of fatigue for your fatigue to be a manifestation of another disease."

I agree.

pr

[free_spirit_etc]

Since I have two IMOs (including the one mentioned) that state his cancer started in service -- would even a letter that was pretty basic but clarified that if my husband had reported fatigue in 1998 - 1999 that it is at least as likely than not that the fatigue could be related to his cancer (even if it also had other causes..) be helpful? (especially if he cited a study or two)?

Or would I need to go the whole way and have him go over all the records on fatigue and discuss all the possible causes, and pretty much write up a whole IMO about fatigue and cancer?

I think I have a pretty strong case - just with that the cancer had its onset in service. Most of the BVA claims I have read that are similar are granted on that basis. Occasionally, the IMOS (and decisions) mention something to the effect that if someone would have examined the veteran's X on a cell by cell basis, they would have found cancer, at least on a microscopic level (which covers the claim if they want to be more specific on that it was "manifest.") I should have that covered with the other doctor's statement that based on the size of my husband's tumor in 2000, they would have detected it before his retirement if they had used an instrument more sensitive than a chest x-ray. (He had a chest x-ray 2 years before he retired).

But the fatigue symptom could also be considered a manifestation - if the doctor considered it to be a symptom of his lung cancer (at least as likely as not).

[FormerMember]

Your case will hinge on one facet alone. His 6/24/96 x ray was the last thing medically recorded assuming you've never obtained his separation physical. <<<A chest x-ray done on 6/24/96 was read as unremarkable.>>> Since you have no medical training (I assume you don't), your lay testimony will be given less weight than written records. I refer to your statement mentioning fatigue at discharge. While it falls in the Layno ruling of being able to observe via the five senses, it still is a stretch. I'm not trying to throw cold water on this but please realize who you are dealing with.

Your only saving grace would be to come up with medical records within a year of discharge clearly showing a finding of lung cancer. Then get a doctor to opine that it is related to service (IMO). Best of luck.

clear prop

[free_spirit_etc]

Thanks asknod. I realize that coming up with a medical record within a year of discharge clearly showing a finding of lung cancer would help a lot. But I am hoping that is not my only saving grace. As cancer is on the list of presumptive illnesses under 3.309, I am not sure I would even need an IMO in that case. If a medical record clearly showed a finding of lung cancer; it should be presumptive.

I am trying to rely on:

(d) Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.

And I do have two strong IMOs that state his cancer started in service. And I have seen quite a few claims granted on a similar theory. My concern is that even though 3.303 (d) states that presumptive periods are not intended to limit service connection to diseases so diagnosed when evidence warrants direct service connection. And 1. M21-1MR, Part IV, Subpart ii, Chapter 2, Section B, 3 c. states “Consider whether direct service connection may be established under 38 CFR 3.303(d), even if service connection is claimed for a disease diagnosed after service has ended. Service connection may be granted for a disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service.

Do not attempt to establish presumptive service connection for chronic or tropical diseases until the possibility of establishing direct service connection has been ruled out.”

My concern is that although the law and M21 clearly state that direct service connection CAN be given to disease diagnosed post service, and that the VA should actually consider the possibility of granting under direct SC (even for disease diagnosed post-service) BEFORE even attempting to to establish presumptive service connection - that some VLJs seem to jump right to presumptive and require that the disease be MANIFEST to a degree of 10% within the presumptive period. If the VA decides to go that direction - 3.307 states:

“This will not be interpreted as requiring that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

So, at this point, I was wondering if I should try to develop the fatigue portion - in case the VA jumps to presumptive SC instead of direct SC.

If the doctor is saying that fatigue is a prominent symptom of lung cancer -- then it might possibly be considered a "manifestation" of the disease. Some of the studies I have read says that fatigue is many time the FIRST symptom that many people with lung cancer have -- before their cancer produces any other symptoms. If the fatigue was at least as likely than not related to his lung cancer -- than that would help my case as far as manifestation.

And this isn't so much my lay testimony of fatigue. My husband reported fatigue to the VA at discharge and had a C&P for it 6 months post service. The C&P examiner said he didn't have CFS, but he didn't give any opinion as to what was causing his fatigue.

ANY manifestation of cancer would be at least 10% because cancer is rated at 100%. If you have it - it is 100%.

My husband didn't seem to go to the doctor much except when he was treated for cancer. So he doesn't have a lot of medical records before that.

BUT -- I would bet that if his cancer was detected within a year or two of when he entered the service, the VA would note than based on its size, and based on the slow growth of that type of cancer, that his cancer pre-existed the service.