First Post

[kathyred]

I have been one of your “Lurkers” for awhile now. I am very grateful for all the help you have provided me to fight the VA. My husband was in the Navy from 1955-1980. He filed a claim for emphysema in 1994 and the claim was denied for lack of treatment records. We didn’t know a lot about the process at that time and assumed that if they wanted treatment records they must need them to grant his claim. He wasn’t being treated at that time although he continued to have symptoms. December 2003 he again filed and was denied, evidence was not new and material. July 31, 2004 Claim was considered reopened but still denied. Was not incurred in or aggravated by military service. December 2005 filed for chronic asthma, thinking that maybe a different diagnose would work. He has been diagnosed with COPD with an asthmatic component in form of emphysema. Jun 2006 again denied, was not incurred in or aggravated by military service. We filed NOD and had a De Novo Review. 5Feb2007 In the decision from the review the Issue was changed to lung disorder and was denied. They then stated we need evidence that his current lung disorder at least as likely as not began in service. We submitted a letter from his private physician stating “…might recognize the natural history of emphysema and the fact that it more than likely that during this patients 20+ years in the military, his disease was progressing.”

Jun 2007 again it was denied and they would ask the VAMC for an opinion. Oct 2007 SSOC they had their opinion and case was still denied. Went to BVA was remanded on May 2009. VA Got another C&P, we got an IMO and they then got another opinion. Just got another SSOC from AMC. Issue is now respiratory disability to include as due to asbestos exposure. Again denied. It will be going back to the BVA in a few weeks.

My question for the experts here is this still a reopened claim from 1994 and if so do we fall under the tobacco rules of 1998.

[kathyred]

Thanks Berta

You don't know how much you have helped me with my Husbands claim through your postings on hadit. Hopefully it will eventually add up to success. This is a reopened claim.

This case is in part what our last NOD was based on:

Citation Nr: 1012867

Decision Date: 04/06/10 Archive Date: 04/14/10

DOCKET NO. 05-32 636 ) DATE

On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines (excerpt)

With respect to tobacco-related disability, for claims filed after June 9, 1998, such as the present claim, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. § 1103(a) (West 2002 and Supp. 2009). Thus, service connection for COPD which developed after service could not be service connected based on smoking in service. However, if COPD were already present upon service separation, such an association with smoking would not pertain to the service connection issue, because service connection for COPD could then be granted based on development of the disease in service, not after service. 38 C.F.R. § 3.303 (2009). Thus the examiner must address the likelihood that COPD developed in service.

We have 3 IMO's (one from Dr Bash because of your postings) stating that his COPD began in service even though it was not diagnosed until 1yr 1mth after service.

Being in the Navy for 20 years it sure is likely he was exposed to asbestos but the VA will want to check his MOS against the PIES list here under a search and then his IMOs must strongly support the asbestos exposure factor

He was exposed to asbestos but doesn't have asbestos-related diseases YET. He does have some spots that they are watching very carefully. He also has a buddy statment that my Husband's bunk was right beneath pipes with asbestos that was deteriorating.

If he claims diesel fuel exposure, that is the same case-the exact type of fuel he was exposed to, plus absolute proof of exposure long enough to cause disability,plus a very strong IMO would help there.

We have 2 IMO's relating diesel exposure to his current condition. 12+ years of his 24+ years of service was spent on ships and in ports where exposure to diesel exhaust was very high.

Do his SMRs reveal anything that shows any bronchial or asthma problems?

Yes he was seen quite abit for respiratory problems in the Navy. 2 of the IMO were based on review of his SMR. Also on his re-enlistment physical he complained of SOB and Chronic Cough,

which they are arguing doesn't prove anything because he wasn't treated at that time. He was using OTC inhalers for his symptoms and he has buddy statments to those facts.

We found this case to support his claim:

Citation Nr: 0916880

Decision Date: 05/06/09 Archive Date: 05/12/09

DOCKET NO. 06-29 267 ) DATE

On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico

Service connection may also be established with a showing of continuity of symptomatology in service and after discharge. This is only required where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In Savage v. Gober, the United States Court of Appeals for Veterans Claims (Court) clarified this provision. The Court explained that if the chronicity provision of 38 C.F.R. § 3.303(b) is not applicable, as is the case here, service connection may still be available if (1) the condition is observed during service or any applicable presumption period; (2) continuity of symptomatology is demonstrated thereafter; and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997).

WHat type of fuel was he exposed to?

We are claiming the following:

“I was exposed to fumes, dust, chemicals and air pollution of all kinds, including asbestos, welding fumes, dust from sanding metal surfaces, paint and solvent fumes, fumes from fuels for aircraft and other gear on carriers, pollution from accidents such as fires and plane crashes and pollution from the ports including diesel exhaust where these ships visited and were based. I was on shore duty at NAS Oceana, Virginia Beach VA (3OCT1959-18 SEP1963) where my office was located in the hanger where the planes were being serviced. I was exposed to exhaust, chemicals, dust, paint fumes, pollutant from sanding and welding, etc. I was also stationed in Washington DC at CNA/OSG where my job took me to the Pentagon twice daily via CNA shuttle bus. Arrival and departures were in the enclosed lower level of the Pentagon and the enclosed parking garage at CNA where I was exposed to diesel and gasoline fumes in high concentrations. Diesel exhaust is a complex mixture of some 450 compounds, over 40 of which have been identified as toxic air contaminants. “

There is alot of info on the internet about COPD and other lung problems associated with diesel exhaust, which I have used to support his claim.

If there is anything more you think I should do please let me know. Again thanks for all your help even if you didn't know how valuable your postings are to us.

[Berta]

You certainly have some good evidence there-

And as I have learned personally and being here at hadit-NOTHING is impossible.

Here is a BVA award COPD due to asbestos:

http://www4.va.gov/vetapp03/Files/0304917.txt

But it does appear he might have better chance with the other exposures he listed.

I commend you for doing all this work for your husband.

He raised more than one issue for potential SC of the COPD and that is always a very good idea if there could be more than one inservice reason for the disability.