free_spirit_etc

Thanks! Have been talking to my husband about the need for the nexus letter - if for nothing else than to speed up the case. And proactive gives us a bit more control (I hope) He will talk to the radiation oncologist he went to and see if he would be willing to write a letter. If not - plan B will be: Writing to the Armed Forces Institute of Pathology and see if they would be willing to issue us a more likely than not statement. I was VERY encouraged on the doubling time theory when I saw that quite a few cancer cases had been granted based on their opinions (sought by the VA). But their website says their second opinions are $171 minimum (more if they do pathology work). They won't get involved in civil lawsuits - but have issued opinions for the VA (most of them favorable to the veteran). I think we have to go through a doctor (if they are willing to issue an opinion) - but we should be able to get one of the doctors to refer us. Their second opinions are usually the kind where they confirm the actual diagnosis - but it won''t hurt to ask for an onset opinion. We considered asking the RO to seek their opinion - but that involves the risk of the opinion NOT supporting us and the VA getting it first. Plan C Asking each of his doctors to refer him to a doctor who WILL issue an opinion. Plan D Finding a doctor who will issue an opinion and then tell his doctor we would like a referal for a second (or first as the case may be) opinion. Plan E Same as plan D - but lacking the referal from a treating physician. Plan F I will go to medical school and should be qualified to issue an opinion myself by the time it reaches the BVA :) My husband's pulmonolgist on base told him that the growth rate was 6 months doubling time for adnocarcinoma. He also wrote it all down on a piec of paper -- about growth rates and doubling times. (how a cancer has to double 35 times to reach 3.1 cm) My husband explained this with his claim and submitted the handwritten note from the doctor. I am sure the note does not look like an official opinion. Too bad they probably wouldn't accept it as a more honest opinion because it was written to educate the patient about his disease. B) In the evidence we recently submitted - we sent articles which supported this. Each article gace the typical doubling time for pulmonary adenocarcinoma at 180 days. This included a SEERS web based training site from the National Cancer Institute. (and the NCI site says "The SEER Program is considered the standard for quality among cancer registries around the world.") We also sent several journal articles stating the same thing -- and sites showing the same thing is taught at Universities. And we did get a letter from his oncolgist which states what kind of cancer he has - the stage - and that the typical doubling rate is 180 days. (he was hestitant to issue an "opinion" because he says they can only state facts and the VA does whatever it wants anyway. - but at least we got him to write the FACT on the doubling time for us. He just didn't do the more likely than not. And we even connected the dots for them with articles that give them the dynamics of the growth rate. from another article: "For example, at a constant doubling time of 180 days, it takes about 2.3 years for a tumor to grow from a diameter of 1.0 cm to 3.0 cm. Thus, assuming no additional benefit of earlier detection, a patient should live about 2.3 years longer when the tumor is diagnosed at a diameter of 1.0 cm vs 3.0 cm.” --------so – if it takes 2.3 years for the typical adenocarcinoma to grow from 1 cm to 3 cm – and it has already doubled 30 times to reach 1 cm (35 to reach 3 cm) – how likely is it that it grew to 3.1 cm between retirement (1998) and detection (2000)? But we DO have written support from TWO of his doctors on the doubling time. (one in an official letter and one in a handwritten note) And we do have literature that supports that - even from the National Cancer Institute. and we have all kinds of literature that builds the case step by step. We didn't just send in a bunch of articles - we built the case step by step and connected the dots -- and we have several articles to support EACH point. (And actually quite a few of the points we sent were the same information the Armed Forces Institute of Pathology used in their opinions in other cases ---how many doubling it takes to reach a certain size, etc. They used pretty much the same process we did -- except they applied it to different types of cancer (based on the case) and they didn't have to build such a strong case because they are the Armed Forces Institute of Pathology -- and we are not - lol So -- if we can get a letter from a doctor that even gives us the more likely than not statement --and a tad bit of slow growing stuff -- we should have some very strong supporting evidence to put around it. I think it would be hard to deny SC - if a doctor will make that statement. And we have the doubling times verified by a doctor's letter and another doctor's handwritten note we have already submitted -- and lots of medical research submitted that can strengthen even a semi-weak nexus letter. At least I hope so. And at this point -I am kind of steering away from wanting them to seek medical evidence on my husband's behalf. Chances are that they will get a C&P guy that will pull one of those "you never know about cancer -- it is different from case to case - We can argue that with the fact that there ARE medically established doubling times --and chances are my husband is not that ONE RARE case that defies medical logic (at least it is more likely than not that he woudn't be B) But still hard to argue with what the DOCTOR said..I know Or he might get one of their college professors from Idaho who say ignorant things like "the medical community considers cancer onset to be when it is first detected" B) --and uses 1956 journal articles to support their points. It's not that I have anything against college professors. Actually I teach college myself -- but am not a professor (an Instructor -- smaller offices :o - no benefits :P --but I have read some of their opinions in cancer cases. (this case was so complex that we contacted a generic medical expert from a college that no one has heard of who said.........." So today - I threw out some suggestions to my husband -- to work a plan to get Dr. Nexus -- or to go hang out at the local medical schools (pretty reputable ones even) until he finds a professor who wold be willing to write him an opinion. He picked the doctor. Actually I thought the professor idea was a GREAT one. After lecturing a few weeks they really appreciate finding someone who really wants to hear what they think... :) The big thing is convincing them that it isn't a lawsuit --and they won't have to testify in court. Free (hoping to be probative)

UPDATE ON THIS DOESN'T LOOK SO GOOD www.pva.org/prof/pdf/Soar_vol7no1.pdf Federal Circuit’s Decision in Cook Overrules Hayre -------------------------------------------------------------------------------- Page 2 Other Cases at theFederal CircuitFederal Circuit Applies CookIn Tetro v. Principi, __ F.3d __, No.01-7031 (Fed. Cir. Jan. 3, 2003), theFederal Circuit applied Cook, to affirmthe CAVC. Mr. Tetro alleged that VAcommitted a grave procedural error inadjudicating his claim for an earliereffective date for the award of nonser-vice-connected disability pension. TheFederal Circuit concluded that because“a procedural error, even if it did occur,does not vitiate the finality” of a chal-lenged VA decision, it would affirm theCAVC. The Federal Circuit observed that Mr.Tetro did not assert either of the twostatutory exceptions to the rule of VAfinality. The two exceptions are (1) thatthe Secretary must reopen a claim “fnew and material evidence [regardingthe claim] is presented or secured,” 38U.S.C. § 5108, and (2) a decision “issubject to revision [for] clear and unmis-takable error.” 38 U.S.C. § 5109A. Mr.Tetro sought to “reopen the March 1990decision by the Board on the theory thathe suffered a ‘grave procedural error’under Hayre.” The Federal Circuit reject-ed this argument, stating that having“overruled Hayre, even a proven allega-tion of ‘grave procedural error’ based ona VA breach of the duty to assist is insuf-ficient for circumventing the rule offinality.” In conclusion, the Federal Circuitobserved that: “Mr. Tetro still has avail-able the two statutory exceptions to final-ity, should his case warrant reopening. In Cook v. Principi, 318 F.3d 1334, 1338-41 (Fed. Cir. 2002), the Federal Circuit, sit-ting en banc, overruled the “grave proceduralerror” doctrine recognized in Hayre v. West,188 F.3d 1327 (Fed. Cir. 1999). The FederalCircuit held that a breach of the duty to assistdoes not vitiate the finality of a VA decision. The Federal Circuit also reaffirmed itsholdings in Hayre and Roberson v. Principi,251 F.3d 1378 (Fed. Cir. 2001), that a breachof the duty to assist cannot constitute clearand unmistakable error (CUE). In light ofCook, the courts will not reverse or remandan appeal to the agency under Hayre. In Hayre, a panel of the Federal Circuitheld that VA’s failure to obtain service med-ical records, coupled with VA’s failure to pro-vide the veteran notice, could constitute agrave procedural error rendering a priordenial non-final and potentially permitting anearlier effective date for benefits.Mr. Cook, the veteran, had sought an ear-lier effective date for service-connected benefits. He asserted that a VA examinationconducted in 1952 was inadequate andargued, inter alia, that the subsequent ratingdecision should be considered non-finalunder Hayre. On appeal, the CAVC held thatthe failure to provide an adequate medicalexamination did not rise to the level of a“grave procedural error.” The Federal Circuit initially affirmed theCAVC’s decision and distinguished the Hayre holding. Mr. Cook sought reconsideration bythe Federal Circuit. The Court granted themotion and on reconsideration, the en bancFederal Circuit overruled Hayre to the extentthat it held that a “grave procedural error”could operate to make an agency decision“non-final.” The Federal Circuit found thatCongress had—by statute—only providedtwo mechanisms for a veteran to overcomethe finality of a prior decision: (1) new andmaterial evidence under 38 U.S.C.A § 5108.(West 2002); and, (2) clear and unmistakableerror under 38 U.S.C.A. §§ 5109A, 7111(West 2002). “Grave procedural error” didnot fit either category.Additionally, as noted, the Federal Circuitaffirmed that part of Hayre that held a failurein VA’s duty to assist, such as the failure toseek records or provide an examination, cannot constitute a clear and unmistakableerror. These types of agency errors, accordingto the Federal Circuit, can not rise to the levelof clear and unmistakable error because theyare not outcome determinative errors.Judges Dyk and Linn concurred. Thesejudges emphasized that the Federal Circuithad not decided that all breaches of theagency’s duty to assist are inconsequential.Chief Judge Mayer and Judges Gajarsaand Newman dissented. These judges argued,in their dissent, that a breach of the duty toassist by VA should operate to render a deci-sion non-final.

http://thomas.loc.gov/cgi-bin/cpquery/?&am...=TOC_41564& SECTION 501: STANDARD FOR REVERSAL BY COURT OF APPEALS FOR VETERANS CLAIMS OF ERRONEOUS FINDING OF FACT BY BOARD OF VETERANS' APPEALS Background Under 38 U.S.C. Sec. 7261(a)(4), CAVC applies a `clearly erroneous' standard of review to findings of fact made by BVA. The `clearly erroneous' standard has been defined as requiring CAVC to uphold BVA findings of fact if the findings are supported by `a plausible basis in the record . . . even if [CAVC] might not have reached the same factual determinations.' Wensch v. Principi, 15 Vet. App. 362, 366-68 (2001) (affirming BVA's denial of service connection where appellant provided substantial medical evidence in support of the claim). The `clearly erroneous' standard was originally adopted in 1988 in the Veterans' Judicial Review Act, Public Law 100-687, which established the current system of appellate adjudication for VA benefits cases. The statute was amended slightly by Public Law 101-237 in 1989, although the `clearly erroneous' standard of judicial review remained unchanged. The `clearly erroneous' standard emerged as part of a compromise agreement after Senate approval of S. 11 and the House of Representatives approval of H.R. 5288. S. 11 directed CAVC to set aside a BVA factual finding only `when it is so utterly lacking in a rational evidentiary basis that a manifest and grievous injustice would result if the finding were not set aside.' H.R. 5288 precluded any CAVC review of BVA factual determinations `unless a constitutional issue is presented.' The House and Senate Committees on Veterans' Affairs noted that the `clearly erroneous' standard adopted at conference is `markedly wider than the standard specified in the Senate bill.' 134 Cong. Rec. 31772 (1988). More than a decade of experience with CAVC's application of the `clearly erroneous' standard suggests that CAVC is not consistently performing thorough reviews of BVA findings and that the Congressional intent for a broad standard of review has often been narrowed in application. In the recent U.S. Court of Appeals for the Federal Circuit decision of Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000), the Federal Circuit vacated a CAVC decision that BVA had not erred in finding that a veteran's claim was not well-grounded. The Federal Circuit rejected CAVC's de novo review, which it characterized as a `dissecting [of] the factual record in minute detail.' Id. at 1264. The Federal Circuit emphasized that CAVC should perform only limited, deferential review of BVA decisions, and stated that BVA fact-finding `is entitled on review to substantial deference.' Id. at 1263. The Committee is concerned with the high level of deference that Hensley suggests CAVC should employ in its review of BVA findings. The limited extent of CAVC's review of BVA fact-finding is also evident in CAVC opinions. CAVC has described its level of review as `significantly deferential' and providing only `very narrow bases for the Court to overturn [bVA] . . . determinations.' Butts v. Brown, 5 Vet. App. 532, 544 (1993) (sustaining BVA's rejection of a veteran's claim of service connection); see also Ammons v. Gober, 2000 WL 1114147 (Vet. App. 2000); accord Presley v. West, 2000 WL 1114124 (Vet. App. 2000) (describing the `clearly erroneous' standard as `deferential' and upholding BVA's denial of service connection). Although Ammons and Presley are both unpublished memorandum decisions, they exemplify the limited extent of the review CAVC is performing of BVA fact-finding. This undesirable situation may be the result of confusion concerning the `clearly erroneous' standard, which exists outside the rubric set forth in the Administrative Procedure Act (hereinafter `APA'). 5 U.S.C. Sec. 5107(2)(e). In their testimony at the Committee hearing on May 2, 2002, veterans service organizations (hereinafter `VSOs') voiced frustration with the perceived lack of searching appellate review of BVA decisions. These groups argued that the large measure of deference that CAVC affords BVA fact-finding is detrimental to claimants and may result in failure to consider the `benefit of the doubt' rule in 38 U.S.C. Sec. 5107(:o. Section 5107(:P provides that VA must find for the claimant when, considering the evidence of record, there is an approximate balance of positive and negative evidence regarding any material issue including the ultimate merits of the claim. This `benefit of the doubt' standard is distinctly different from standards applicable to most adjudicatory proceedings, where claimants are required to produce a preponderance of evidence so that the weight of the evidence favoring their claims. VA also testified at the Committee hearing on May 2, 2002, and opined that CAVC routinely considers whether BVA has applied the `benefit of the doubt' rule. However, VA suggested that if the Committee believed a less restrictive standard than `clear erroneous' was warranted that the substantial evidence standard of the APA was appropriate. The Committee solicited comments from CAVC, the Federal Circuit, and the Administrative Office of the United States Courts. All declined to comment. Committee Bill Section 501 amends section 7261(a)(4) of title 38 to change the standard of review CAVC applies to BVA findings of fact from `clearly erroneous' to `unsupported by substantial evidence.' Section 502 also cross-references section 5107(B) in order to emphasize that the Secretary's application of the `benefit of the doubt' to an appellant's claim shall be considered by CAVC on appeal. The combination of these changes is intended to provide far more searching appellate review of BVA decisions, and thus give full force to the `benefit of the doubt' provision. The formula `unsupported by substantial evidence of record' is similar to the standard specified in the APA, and should be interpreted as such except that the interpretation must reflect the `benefit of the doubt' rule and thus provide a unique bias in favor of the claimant when the evidence is balanced. Change in CAVC's standard of review was first proposed in S. 2079. That bill would have changed the `clearly erroneous' standard by allowing CAVC reversal of BVA fact-finding whenever that finding was `not reasonably supported by a preponderance of the evidence.' The Committee modified this standard in order to provide a more familiar and judicially-recognized standard of appellate review. Although the `clearly erroneous' standard has been interpreted by some to require an incrementally more searching review than `substantial evidence,' the `substantial evidence' standard is within the APA's rubric. 1 [Footnote] Under the APA's rubric for agency review, `substantial evidence' review is the least deferential review an appellate court may apply short of `de novo' review. By including specific reference to the `benefit of the doubt' rule in the amendment made by section 501 and moving to a standard that is recognized to provide for searching review, the Committee intends for section 501 to make it clear that CAVC is to provide a thorough review of VA benefits claims on appeal. [Footnote 1: The `substantial evidence' formula has been judicially interpreted to be slightly more deferential than a traditional `clearly erroneous' standard. Dickinson v. Zurko, 527 U.S. 150, 162-163 (1999). However, the difference, if any, is slight: the Supreme Court stated in Dickinson: `[T]he difference is a subtle one-so fine that (apart from the present case) we have failed to uncover a single instance in which a reviewing court conceded that use of one standard rather than the other would in fact have produced a different outcome.' Id.] The Committee intends the `substantial evidence' standard to mandate a limited degree of deference to BVA fact-finding, with substantial deference given to findings of fact based on demeanor evidence, but to provide for searching judicial review of VA benefits claims encompassing the `benefit of the doubt' rule. The Committee believes this formula will achieve this goal. Cost: CBO was unable to provide a cost estimate associated with section 501.

Army vv - I ran across this in my research. Thought you might want to add it to your arsenal. :o http://www.iom.edu/File.aspx?ID=35667. In case the link doesn't work - it is called: PROBLEMS FACED BY VETERANS IN OBTAINING DISABILITY COMPENSATION FROM THE DEPARTMENT OF VETERANS AFFAIRS FOR POST TRAUMATIC STRESS DISORDER ______________________________________ BARTON F. STICHMAN JOINT EXECUTIVE DIRECTOR NATIONAL VETERANS LEGAL SERVICES PROGRAM June 6, 2006 It looks like it has LOTS of good tips :P such as: "3.6.2 Summary of the Three Requirements to Qualify for Disability Compensation The adjudication of claims for service connection of PTSD can be complex because there are numerous regulations, Court cases, and Manual M21-1 provisions that must be applied if proper adjudication is to take place. VA regulations and Manual M21-1 provisions on PTSD have been amended several times in recent years to reflect new Court decisions and the adoption of the DSM-IV. When the law changes while a claim is pending before the VA regional office or Board of Veterans’ Appeals, the veteran is sometimes entitled to have the claim adjudicated under the most favorable version.1 This Manual primarily discusses the PTSD regulations and Manual M21-1 provisions existing as of the date of this Manual’s publication. Advocates should remember to consider whether a previous version of a regulation or Manual M21-1 provision was in effect while the claim was pending before the VA or the Board of Veterans’ Appeals and, if so, which version is more favorable in a particular case." "Once the veteran has submitted a medical diagnosis of PTSD, the ability of the VA to deny the claim for not showing a current disability is limited. Unless the record contains medical evidence directly contradicting this diagnosis of PTSD, the VA must accept that the stressor described by the veteran to the examiner was medically sufficient to support a diagnosis of PTSD and that the veteran’s symptoms were adequate for the examiner to diagnose PTSD.18 If the VA doubts whether the described stressors were sufficient to cause PTSD or the adequacy of the symptomatology described in the diagnostic report, VA must comply with VA regulations by taking one of two courses of action: either put aside the doubts and accept the medical report as sufficient for rating purposes, or return the medical report for clarification (not necessarily to the original examiner).19 If clarification is not provided when the report is sent back, the VA must either return the examination report again or obtain independent medical evidence concerning the issue.20 The bottom line is that the VA cannot reject a competent diagnosis of PTSD without an adequate statement of reasons or bases for its decision and unless it can point to other medical evidence in the record to support its conclusion that the veteran does not have PTSD.21 **Advocacy Tip** The mental examination report should not express an opinion as to whether the veteran’s claimed in-service stressors have been adequately substantiated. Whether or not the veteran experienced the specific event claimed as a stressor is not a medical matter but a factual issue for determination by the Board of Veterans’ Appeals or the VA regional office.22" Free

So how did your meeting go? I sure am NO expert on CUE - but from the CUE research I have been doing - a CUE might look good. From what I have read - a CUE can be decided based on legal errors or errors of facts. If your case would show that a the facts, as they were known at the time, were not considered - and those facts that were not considered would have manifestly changed the outcome of the decision - then a decision can be reversed. What is especially important to me is that these are service medical records. Even if those were not available to the RO - they SHOULD have been - as they are service medical records. So it is not like you are coming back with new and material evidence (for a NEW claim) - you are coming back with evidence that WAS considered "avalibale" at that time (though it was not available. In other words - if THOSE facts - which SHOULD have been considered because they are part of your service records - were NOT considered (because they couldn't find them) and those facts can win your case -- then the same decision SHOULD have been made 13 years ago (thus the CUE) I don't remember the exact case - but there was one in the courts in which the courts specifically decided a CUE for a veteran for DUTY TO ASSIST. Though duty to assist is not USUALLY a basis of CUE - they DID grant it in that case because the RO tried ONE TIME to obtain service medical records - did not obtain them - and did not inform the veteran that they did not have them - or seek to obtain them again. The court granted CUE for failure d duty to assist in THAT specific case. Other veterans have TRIED to claim CUE for failure in duty to assist - citing that case, but the courts have ruled that the CUE for failure in duty to assist was very limited to the specific case of the VA not seeking the medical records beyond the first attempt and not informing the veteran they were not obtained until they had already decided his case. The courts did not broaden this to other duty to assist issues. But based on wat happened in your case - it could be close enough to the case in which the CUE was granted that you might be able to make the connection. I can't find the exact case I was talking about - but this is interesting: It looks like they didn't decided it was a CUE because in failing to obtain the requested SMRs they determined the decision was not final (and a decision has to be final to get a CUE) But..hey...getting a decision that the you can't get a CUE for failure of duty to assist - because the decision wasn't final because of failure of duty to assist - would be about the same end result, wouldn't it? www.ll.georgetown.edu/federal/judicial/fed/opinions/98opinions/98-7046.pdf "A breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency is a procedural error of, at least, comparable gravity that vitiates the finality of an RO decision for purposes of direct appeal. Whether this lack of notice is the product of inadvertence or design, it places the interests of the veteran, in this uniquely pro-claimant adjudicatory system, in considerable jeopardy in that it effectively extinguishes the claimant's right to judicial review." "Where so much of the evidence in VA adjudications is circumstantial at best, notice explaining the failure to obtain pertinent and specifically requested SMRs is critical to ensuring a proper award for benefits and an effective right to judicial review. If a veteran, who is later able to obtain counsel or serendipitously discovers a breach of the duty to assist, has no remedy, then the duty to assist becomes a hollow obligation. In such a case, the veteran is trapped in an impossible situation, a Catch-22 in which judicial review is not available because the VA refuses to obtain the pertinent SMRs specifically requested by the claimant, and the Court of Appeals for Veterans Claims refuses to require it because the claimant cannot prove that the missing SMRs would manifestly change the outcome of his or her case. We therefore hold that where there is a breach of the duty to assist in which the VA failed to obtain pertinent SMRs specifically requested by the claimant and failed to provide the claimant with notice explaining the deficiency, the claim does not become final for purposes of appeal."

Yeah. Actually this letter is probably directed more to the BVA than the RO. The RO MIGHT read it - but if they don't - the BVA shold read it when it finally gets there. And I was hoping that at the BVA level - they wouldn't give the C&P report much weight if we can show how inadequate it was. Plus for rating purposes - even if he got approved for back pay - since the examiner indicated he had no residuals at that time - he wouldn't even get benefits for that period of time - so I wanted to point out the guy never even SAW him - and that resduals were apparent in the medical records. His PFTS alone would rate him between 30 and 60 percent from the time he ended treatment until his cancer recurred (which should take him back up to 100%). And no - you can't just STATE a person doesn't have residuals from having part of a lung removed without looking at the PFT reports done by your own hospital the same day. You have to give medical reasons as to why the loss of part of the lung did not cause the reduced PFTs. And the RO didn't really look at his file. They just repeated what the doctor said. Most of my husband's SOCs and C&P reports for other claims are very intensive. The report and the SOC on the lung cancer are very brief and don't really address anything. The examiner even said there was no indication of any respiratory problems on his DISCHARGE PHYSICAL. The SOC said the examiner indicated there was no evidence of any repiratory problems in his SERVICE MEDICAL RECORDS. About HALF of his service medical treatments were for respiratory problems. (Upper and lower respiratory tract infections). I know that would be a "harmless error" as there is no evidence that respiratory infections would cause lung cancer - but when they say "Your claim is denied BECAUSE there is no record of resipratory problems in your service medical records" -- and there ARE significant records of resiratory problems - GRRR For some reason I don't expect to win at the RO level - even with a nexus letter. But I hope to build a strong enough case that my husband can win at the BVA level, rather than have the case remanded. Free

My husband claimed direct service connection at the get-go (based on the growth rate of the cancer indicating it began in service) The asbestos was the secondary. We are arguing both. The VA dropped the ball on the direct service - and only askd the examiner to issue an opinion on eitology. Lung cancer is one of the presumptive illnesses with the one year connection. Good point about the nexus letter and trying to support the calim rather than point out their flaws. Though I think doing both might help - especially at the BVA level. My take is that if we get a nexus letter AND point out the flaws of the C&P "exam" (that never examined him) my husband might win at the BVA level. If we point out the flaws of their exam - the BVA might remand it. - whch will just take it up one more level of the spiral. If we do neither - it will will probably keep going around the same loop. My husband thinks we have a strong enough case - - and if a new C&P examiner doesn't address the issues we have pointed out - the BVA will remand it. But yeah..that takes time. And with a terminal diagnosis - time is not something we can afford to lose. I also see the RO gets opinions from university experts - and these are usually not in favor of the veteran. (i.e. they know who to ask for a negaive opinion). The university opinions are usually not well supported. Oddly enough - many of the cases I have researched that were denied were based on medical opinions of the veterans OWN treating physician. One said that it was "hard to write" but that she didn't think the cancer had started in service. Other opinions are the VA 'impossible to say" ones. Now this has concerend me. Why in the world would a vet turn in a report that was AGAINST them? Does the vet just ask for an opnion and the doctor writes a negative one and sensends it directly to the VA. Or does the VA notice that you have not turned in a letter in support of your calim from your treating physician - and contact them for an opinion - figuring that they will write a negative one or a wishy washy "can't tell" one in order to deny the claim. It doesn't make sense that the veteran would obtain an opinion that is not in their favor - and send it in. Yet there are many cases with vets with non supportive letters from the treating physician. Or is it just that the nonsupporting part is all the BVA lists in their discussion? At first we thought we could probably get a supporting C&P exam - if the doctor has to address the issues we brought up. Now I am more inclined to think they will do the wishy washy "can't tell" Though again, if there are standard growth rates for cancer the examiner SHOULD note why he has determined that THIS cancer is so unusual that the standard growth rates do not apply. Why would it be more likely than not that THIS cancer MAY have doubled at a rate that is not only faster than the typical cancer - but faster than any rate reported for this type of cancer by ANY medical reseach. I have looked up some placed offering second opinions. I really wish my husbands treating oncologist would write an opinion - even if the VA does not give it much weight. It still seems it is better to have an opinion in support from the person who treats you - as the lack of such letter can be interpreted as non support. But his doctor said the VA will do what it wants to and it doesn't matter what anyone else says. So I thnk our next step is to find someone who WILL write the opinion - and then ask his treating doctor to ask for a referal to THAT doctor - and have THAT doctor indictae in HIS report that the treating doctor has asked for a second opinion. The we could get the opinion - and still link it to the treating physician - so it won't look like a doctor shopping opinion. I think we can definately win in the end - it is more a matter of how long the journey will take - and how much time my husband has left to comeplete the journey. Free

So would sending this be a good idea? And what suggestions for changes do you have? Free C&P Service Clinician’s Guide § 4.2 “1.11 If an examination report does not contain sufficient details to adequately support the diagnoses (unless the diagnosis is already well established) or sufficient information about the current findings and effects on functioning, the RVSR will return the report as inadequate for rating purposes. (38 CFR 4.2) I consider the examination I received in March 2002 regarding my lung cancer to be totally inadequate for the following reasons and request that it not be used as a basis in determining my case. 1. The examiner did not examine me. Though the report is labeled as an examination, the examiner never met with me. The examiner indicated in his report that he was requested to offer an opinion after review of the medical records whether there is a relationship between my currently detected lung cancer and exposure to asbestos in the service, or to give an opinion as to any other etiology. There is nothing in the examiner’s report which indicates he even talked to me, let alone examined me. The VA examiner issued his report / opinion after a review of some of my records. However, issuing such a report as a “Respiratory Diseases, Miscellaneous Exam” is misleading, and could be mistaken for an actual examination under the VA Clinical Guidelines, which it is not. 2. The fact the examiner stated I had no shortness of breath, and did not have any apparent residuals of the lung cancer I was treated for without even examining me raises a legitimate question as to the credibility of his report. My pulmonary function tests done at the same VA facility on March 19, 2002 (the same day the VA examiner indicated he reviewed my medical records – and five days before he signed the report) noted that I had dyspnea on hills and stairs, frequent wheezing, and decreased FVC (73% predicted) and decreased FEV1 (69% predicted) According to § 4.97 Schedule of ratings—respiratory system.Restrictive Lung Disease - 6844 Post-surgical residual (lobectomy, pneumonectomy, etc.). FEV-1 of 56- to 70-percent predicted should be rated at 30% The examiner did not even mention my pulmonary function tests done that day, yet he declared I did not have any apparent residuals of the lung cancer. Though it is part of my medical record, it is not clear whether the examiner realized that I had a left lung lower lobectomy before he issued his opinion on my residuals, as he failed to mention it in the report. My DLCO was 51% on my pulmonary tests at xxx Air Force Base in 2001. These were also part of my medical record. According to § 4.97 Schedule of ratings—respiratory system.Restrictive Lung Disease - 6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).DLCO (SB) of 40- to 55-percent predicted should be rated at 60%. The C&P Service Clinician’s Guide 6.1 d) 4. states “If the DLCO test is not included as part of pulmonary function testing, the examiner should determine whether or not it would provide useful information about the severity of pulmonary functioning in a particular case. If it was not done as part of the routine testing, and would not be useful, the examiner should explain why, e.g., by explaining that the DLCO would not be valid in this particular case because of the decreased lung volumes. Unless an explanation for its omission is provided, the DLCO should be done.” Though my DLCO’s of record were low, no DLCO was done as part of my pulmonary functioning testing. Nor was there any explanation as to why a DLCO was not done prior to his determination that I had no residuals from lung cancer. Again, I question the adequacy of his report. As I also have resected ribs, an 11 inch long depressed scar spanning from my scapula to under my arm, etc. I question the ethical soundness of a physician making a determination that I had no residuals of lung cancer merely from reviewing some of my medical records, without so much as seeing me, and without articulating sound medical reasons for doing so. 2. There is no indication that the examiner issued a fully informed opinion based on a complete and thorough review of all the relevant information of record. I would think this would be especially important when issuing an opinion from viewing the files, in absence of examining me. Though the examiner notes that my service medical records were completely reviewed, he doesn’t articulate any specific post-service medical records that were reviewed. The only post-service medical record the examiner references in his report is the September 2000 pathology report, which indicated evidence of emphysematous changes. As my claim involved post-service diagnosis of disease, which is covered under §3.303(d) , it would seem that a complete and thorough review of my post-service medical records would also be necessary in order to issue an valid opinion concerning the disease. Evidence of a substantial reasonable doubt being raised as to the examiner issuing a fully informed opinion includes: a.) The examiner noted that my medical records did not indicate I had any unique medical conditions that are associated with asbestos. However, he failed to mention my Interstitial Lung Disease that was indicated in x-rays taken at xxx Medical Center and xxx Hospital in 2000, and confirmed with a diagnosis in a pathology report at xxx Hospital in September 2000. Interstitial Lung Disease is often linked to asbestos exposure, yet the examiner did not mention it, nor provide rationale, based on sound medical principles, for making a determination that my Interstitial Lung Disease was not a medical condition that is associated with asbestos. b.) The examiner noted there does not appear to be anything in the medical records to support the presumptive diagnosis of exposure of asbestos. I did not ask to be granted a presumptive diagnosis of exposure to asbestos. I clearly indicated specific work tasks I did, in specific instances, which exposed me to asbestos working as an electrician in the Air Force. Additionally, my post service medical records clearly indicate asbestos exposure. Both my treating pulmonary physician and oncologist at xxx discussed my occupational history with me, and indicated in their medical records that it was likely I was exposed to asbestos while working as an electrician in the Air Force. Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. xxx(In Medical Records from xxx Air Force Base) states: “CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN Also likely asbestos exposure as electrician 1969 – 1982” New Patient Note 10/10/2001 – xxx, MD – Oncologist (In Medical Records from xx Air Force Base) states: “The patient’s past history is somewhat remarkable in that he worked as an electrician in the air force and was exposed to asbestos.” The Nursing Assessment from xxx Hospital 9/29/2000 also notes under Respiratory system: · Asbestos exposure · Lung CA · Cough The examiner gave no rationale for disregarding the notations of asbestos exposure in the medical documentation. He did state that the medical records did not indicate any industrial hygiene surveys or show any evidence of being on any unique occupational health surveillance programs. However, he failed to articulate whether these types of programs, in regard to asbestos, were even in effect in the Air Force during the 70’s and early 80’s. As evidence will show that such programs were not in effect at such time – indicating there is a lack of such records, without indicating that the lack is the result of such programs not being in existence at such time, is very misleading, if not uniformed. Additionally, the examiner stated there was no solid evidence that I was routinely exposed to asbestos. However, he did not articulate whether he was indicating that asbestos exposure would have had to been routine to have played a role in the development of my cancer, the degree of exposure would need to be to be considered routine, and what medical bases support such a decision. Based on the above mentioned issues, it appears the examiner’s report was either very uninformed or very biased, in that he noted that I had a history of smoking and a pathology report of emphysematous changes, yet he made no notations in the report of the indications of asbestos exposure in my medical records, my diagnosis of Interstitial Lung Disease, or the restrictive patterns in my pulmonary function tests - and gave no medical bases for disregarding these in his opinion. To make a decision that my lung cancer is secondary to my long term use of cigarettes, while failing to mention any of the evidence of record of asbestos exposure, though noting what evidence was NOT in the record -- occupational health surveillance records which were part of a program initiated AFTER I was no longer an electrician, seems rather flawed. By not discussing the evidence OF record, the examiner gave no rationale, based on medically sound principles, for the determination that my cancer was secondary to smoking and not related to my in-service asbestos exposure. Nor did it provide a medically sound basis for the determination that I had no apparent residuals from my left lower lobe lobectomy. As such, the report should be considered inadequate for rating purposes.

Are you able to get copies of your C-file when you are there? Or copies of parts of it? Free

Yeah.. I think maybe our next step needs to be finding a VSO that will really help. My husband went to an agency in the area on his earlier claims and all they had him do on the appeal forms was check the box and state the claim...the one word diagnosis. So the only help they gave was making sure the proper forms were turned in. And that the boxes were checked. So he switched to another group - but we were under the impression the VSOs were just in name only most of the time. So maybe we need to see about finding a good one. You were very lucky to finally find out about your disease...and it's cause. When my husband had his first cancer surgery, all the doctors told him for a year he had small cell lung cancer. After a year - someone finally read the lab report - and his pulmonolgist informed him he had nonsmall cell cancer - and because of the slow growth rate of that cancer - it probably started in the mid to late 80s. He retired in 1998. Thus - he wrote the letter to open his claim. Free

Yep! I like the folks here at hadit!! They give me hope to hang in there! Even when everyone thought my husband wouldn't live very long in 2004 - we just kept on hoping...when everyone thought we were fools! :o Don't really know how much time we have left - but we have had more time and good time! :P Actaully they did find and acknowldedge the cervical strain in-service - they just said he didn't have evidence of a CURRENT disability of it. We will probably file for that -- and try for an earlier effective date - not back to the original claim in 1998 - but back to the 2004 VA examine when the current disability was finally acknowledged in a VA examine. Maybe that is the way to get the diagnosis. Claim for something ELSE! Then they say - no - it is not this - it is that...(which was the original thing you claimed). Thanks for all your good advice, Free

Benefits for Spouses and Divorced Spouses §404.330 Who is entitled to wife's or husband's benefits. http://www.ssa.gov/OP_Home/cfr20/404/404-0330.htm http://www.ssa.gov/OP_Home/cfr20/404/404-0333.htm §404.333 Wife's and husband's benefit amounts. Your wife's or husband's monthly benefit is equal to one-half the insured person's primary insurance amount. If you are entitled as a divorced wife or as a divorced husband before the insured person becomes entitled, we will compute the primary insurance amount as if he or she became entitled to old-age benefits in the first month you are entitled as a divorced wife or as a divorced husband. The amount of your monthly benefit may change as explained in §404.304. §404.335 How do I become entitled to widow's or widower's benefits? http://www.ssa.gov/OP_Home/cfr20/404/404-0335.htm http://www.ssa.gov/OP_Home/cfr20/404/404-0338.htm §404.338 How is the amount of my widow's or widower's benefit calculated? Your widow's or widower's monthly benefit is equal to the insured person's primary insurance amount. If the insured person died before reaching age 62 and you are first eligible after 1984, we may compute a special primary insurance amount to determine the amount of your monthly benefit (see §404.212(:o). We may increase your monthly benefit amount if the insured person earned delayed retirement credit after full retirement age (as defined in §404.409) by working or by delaying filing for benefits (see §404.313). The amount of your monthly benefit may change as explained generally in §404.304. In addition, your monthly benefit will be reduced if the insured person was entitled to old-age benefits that were reduced for age because he or she chose to receive them before attaining full retirement age. In this instance, your benefit is reduced, if it would otherwise be higher, to either the amount the insured would have been entitled to if still alive or 82½ percent of his or her primary insurance amount, whichever is larger. You also want to check out all their rules about reductions for government pensions. You can go to: http://www.ssa.gov/ and calculate benefits --and order a statement for benefit estimates. Free

She should be able to. I am thinking she can draw upon your death OR upon you reaching retirement age. But she would only recieve a percentage of your benefits on retirement. Though they have special provisions about govenrment pentions and all that jazz now. They reduce your benefits some if you are drawing a government pension also. Might be something you want to check out. Free

I don't have a copy of it all. He has kept a copy of all of the letters, decisions. SOC, etc - so I have been going through those. We got his VA medical records from going to the hospital and picking them up. He filled out a form one day and picked them up the next - FREE - but you do have to ask if you have ALL the records) I was looking for his lung cancer C&P and didn't see it at first - so he asked if that was all the records. And - gues what - they weren't. She said they usually don't give people some of their C&P exams because they might upset them...especially the psych exams. Say what????????? So he asked for a copy -- and she had to go back and READ it to see if there was anything in it that might upset him before she could give it to him. Is this America or what????? He was able to get his post service medical records (On Base) in a couple days... but they were not complete. The doctors have records that are not included in your official file. He just got a bunch of digitalized records with very brief - clcik the diagosis type stuff... and very few notes. I was real upset - because the VA wants documentation - and they had very little documentation of anything. My husband had his appendix removed - and there was one page - just noting he had surgery and being released. I said "they have reduced an entire surgery and hospital stay to SIX LINES?????????????" So he went out and raised heck with them..and they said - oh -- we just gave you the official files. That other stuff would be in the doctors records. So he asked for those. It took a couple weeks to get them - but they had LOTS of useful information. If the VA asks for records - they probably get the digital crap - that doesn't say much. But how is a veteran to know that when you say records - there are more than one set of records.... So claims are probably being decided a lot without the full medical records. Not sure if they do the same thing with in service records. He has ordered those - but they said it will take awhile to get them. We have also sent in a request for his records at the VARO - but haven't heard a thing yet. But when you ask for records - make sure you ask for ALL the records...and when you get them make sure you ask again.... because it has been our experience that they just give you a stack and have more in reserve...in other places... Free

Didn't find the case yet - but found this: and it looks good! :o http://www.wvajustice.com/index.php?pr=Veterans_news In order to get a medical opinion that a veteran’s disability is related to exposure, injury or illness veterans should remember that the law now requires treating VA doctors to provide opinions whether the disability is likely related to what happened in service. In fact, one of the judges of the Veteran’s Court recently reminded the VA that Va doctors are not free to refuse to assist veterans, see Crutcher v. Nicholson, decided January 24,2006.

I never even thought of MRIs on that. And yeah.. when my husband CLAIMED for cervical strain - they couldn't find it - Then when he claimed for headache - they found it was cervicalgenic something (which meant it was not an undiagnosed illness.) But the third VA doc DID ask those questions -- and I thought gave him a pretty accurate tests. ..and did x-rays and things. He didn't document that the cervical strain was connected in service - but my husband had claimed for it - but was denied based on no finding of current disability. The other cause of his headaches was listed as Chronic sinus something - which the exainer had noted was diagnosed in service. The RO, of course, says there was no evidence of that being chronic. Never mind that he has lots of documentation in the medical records that he had recurrrent sinus infections during the 70s and 80's. He finally just accepted them as a way of life and quit going to the doctor for them . But you would think 20 years of treatment would be chronic. Of course the VA examiner said something about he was treated in 1972 and had an x-ray in 1983. Like 11 years later they just decided to x-ray his sinuses to see how they were doing??? Ack!!! Actually - I just started this process a couple months ago - and am amazed at what I am finding. But my husband would prefer I keep focused on the cancer issue - as that is most important -- but I keep running across this other stuff while research for that. Glad you finally found someone cometent. :o Actually - the VA examiners have done a pretty good job with most of their exams with my husband. Much more extensive than the private docs. It was the RO who missed the ball on those. And I think his cervical issue may have just gotten worse so they could finally detect it. I guess that is why he kind of wants to put off seeking an exam. His tri-care docs don't want to issue an opinion...and he thinks we built a strong enough case -- or that if he gets a semi-competent VA doctor who actually SEES him this time - he will do okay. But I would feel much better with a doctor's medical opinion to support the case. Free

Thanks Hoppy! I have just recently realized that VSOs actually help people. I just thought they let you put their name on a case and pretend to represent you so the Va can pretend you were represented. I didn't realize they actaully DO represent people. There are a few form letters from the VSO in my husband's file. "Your claim has been decided - it is important that you read the letter you get..." stuff. But that is it. I thought the VSOs were just an illusion. Free

I seemed to have lost my Oops! Wrong diagnosis post. But basically...my husband filed for SC for cervical strain in 1998 - was denied, is in service record, but they said he had no current disbility. He appealed in 1999. Once again - was denied - as they did find a slight space between two of his cervical disks -- but said still did not show current disbility. Then - in 2004, when he had a C&P for headaches (gulf war) they denied THEM as the VA examiner determined his headaches to be cause by his cervical problems - in the SAME place as the other exams - but worse. I plan to file that the cervical condition should be granted retroactive to AT LEAST the 2004 exam. Found this decision -- where a guy claimed headaches - was denied because it was a neck problem that he THOUGH were headaches - but the VA failed to develop the case for neck problems. Love what the court says! http://caselaw.lp.findlaw.com/cgi-bin/getc...e&no=007023 U.S. Fed Circuit Court of Appeals 2000 United States Court of Appeals for the Federal Circuit 00-7023 NORVAL J. ELKINS, Claimant-Appellant, v. HERSHEL W. GOBER, Acting Secretary of Veterans Affairs, Respondent-Appellee. Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for claimant-appellant. Our examination of Elkins' briefs before the Veterans Court points to the latter. In those briefs, Elkins cites the medical report conclusion that his headache pain was actually attributable to a neck injury and argues: The doctor acknowledges that the Appellant experiences pain which he "interprets" as headaches. The Appellant's substantive appeal mentioned headaches. [ ] It is disingenuous, at the very least, to argue that the Appellant is not competent to give an opinion as to the etiology of his condition, but then disallow his claim when he identifies the symptom that he is experiencing for the reason that he has failed to adequately diagnose it. :o

We sent quite a few medical articles about cancer in support of our calim. When I was researching cancer and BVA I found quite a few claims that were granted along the same theory that we argued. In my husband's case we argued. 1. He retired in Sept 1998. 2. His cancer was detected at 3.1 cm. in August 2000. 3. Pulmonary adenocarcinoma has a medically established doubling time of 180 days. 4. It takes approx 35 doublings for a tumor to reach 3 cm. 180 days times 35 times is WAY more than 2 years. -- And it is more likely than not that my husband's cancer did not grow to the size that typically takes 17 years to develop in the two years after service. Though applied to different types of cancers - these same principles were used to grant service connection for cancer. Two were supported by the Armed Forces Institute of Pathology applying the standards - and one by the BVA. Would it be useful to send these claim to the RO to show that this same argument has been used to grant service connection many times? And also to add backing to OUR evidence (that it takes about 35 doublings to reach 3 cm - that a tumor is rarely detected on a chest x-ray until it is 2 cm. --thus it was not detected sooner...etc) http://www.va.gov/vetapp93/files2/9315426.txt Received in March 1993 was an opinion by the Armed Forces Institute of Pathology, issued by the Chairman of the Department of Environmental and Toxicologic Pathology, who reported that agreement was obtained on the diagnosis of adenoid cystic carcinoma in the veteran's case. He indicated that, as a general rule, adenoid cystic carcinomas are very slowly growing tumors. He pointed out that this tumor's volume doubling time has been estimated at about two years. (See Mayo Clinic Proceedings 68:297-306, March 1993.) He further reported that the Department of Otolaryngic Pathology stated that it was their opinion that the adenoid cystic carcinoma in the veteran existed as a microscopic lesion during his period of service. He also noted the following: It is possible that the lesion existed (as a tiny or microscopic lesion) prior to the beginning of service. However, this would be less confidently stated than the statement about existence during the period of service. In summary, it was noted that the Armed Forces Institute of Pathology staff concurred in the diagnosis of adenoid cystic carcinoma in this case and that the probable duration of this tumor was such that it was present during the veteran's service. We concur. Thus, a grant of service connection for the cause of death is warranted. ORDER Service connection for the cause of the veteran's death is granted. http://www.va.gov/vetapp93/files3/9320249.txt Pursuant to the Board's request of May 1993, the Chief Medical Director of the VA submitted this case to the Armed Forces Institute of Pathology. After a review of all the evidence, including pathological materials, the examiner replied, in pertinent part, as follows: Theoretically a tumor will have passed through 30 doublings before a single cell becomes a detectable tumor mass of 1.0 to 2.0 centimeters in diameter. If it is unlikely that a patient can survive much beyond 40 doublings because of a very rapid increase in tumor size, then it can be appreciated that such a tumor has already been in a subclinical existence for almost ¾ of its natural history at the time of detectionand treatment. By extrapolating data on meandoubling time for squamous cell carcinoma, it is possible to arrive at a projected value for the time it takes for a tumor to attain a detectable size of 2.0 centimeters as 7.8-9.1 years (1, 2). In Fraser and Pare's textbook Diagnosis of Diseases of the Chest, 3rd ed., W. B. Saunders Company, 1989, on page 1407, the authors state "The time required for a malignant pulmonary nodule to reach 1 centimeter in diameter ranges from about 2.5 to over 25 years." Since Mr. Brown's tumor measured 5 centimeters in maximum diameter three years after, it is reasonable to conclude that it had its inception prior to his discharge and more particularly during the years of his service. In view of the above, it is apparent that the veteran's fatal carcinoma of the lungs with metastases to the brain had its inception during his 20 years of active duty and, therefore, service connection for the cause of the veteran's death is clearly warranted. ORDER Service connection for the cause of the veteran's death is granted. This one does not have an opinion from AFIP, but uses much of the same reasoning. http://www.va.gov/vetapp92/files2/9213359.txt . The third period is when there is clinically evident disease. The time required from malignant transformation of a single cell to the appearance of a tumor large enough to be clinically diagnosed depends on the rate of cell division. Squamous cell carcinoma of the lung, absent other factors, is relatively slow growing. Studies have shown that the average time the tumor has been present in the body before symptoms develop may be 7 to 8 years for this histologic type. G. Baum, M.D., et al., Textbook of Pulmonary Diseases, l060 (3rd ed. l983); A. Fishman, M.D., et al., Pulmonary Disease and Disorders, l93l (2nd ed. l988). Experimental studies suggest that early cancer growth occurs at a constant exponential rate. Applying this to human cancer of the lung, 20 doublings would be required to produce a l mm. tumor containing l million cancer cells; 30 doublings would be required to produce a l cm. tumor containing l billion cells; while 35 doublings would be required to produce a 3 cm. tumor containing l0 to l00 billion cells. However, certain factors are known to limit these growth patterns. The mean doubling time for squamous cell cancer of the lung, absent other influences, is estimated at 88 days; thus, from the time of malignant change until a 3 cm. mass becomes chronically evident, the calculated time might be 8.2 years. Fishman, supra at l933. The veteran's 6 cm. tumor, based on the above cited growth rates, can reasonably be considered to have had its beginning during active service, and service connection is warranted therefor. In further granting benefits not only for the lung cancer, from which he now has apparently specific postoperative residuals including pain in the scar areas and dyspnea, but also for other current respiratory problems, the Board notes that the veteran now exhibits dyspnea with shortness of breath and some right lung dysfunction with decreased fremitus and loss of normal breath sounds. He has testified that he has not smoked cigarettes since his surgery in l983. He also has objectively demonstrated severe ventilitary as well as obstructive defects in both lungs. One physician diagnosed progressive chronic obstructive pulmonary disease in March l990. Accordingly, service connection is also reasonably warranted for the veteran's other chronic respiratory problems as symptomatically indistinguishable from his service-connected postoperative residuals of lung cancer. 38 C.F.R. § 3.303. ORDER Service connection for postoperative cancer of the left lung with chronic respiratory disorders is granted.

This is a bit old - so I am not sure if it is still effective - but is interesting...especially the part where they discuss loss of medical records and withholding of information by the service department as clear and unmistakable errors....factual errors. www1.va.gov/ogc/docs/PREC_88-90.doc DATE: 08-22-90 CITATION: VAOPGCPREC 88-90 Vet. Aff. Op. Gen. Couns. Prec. 88-90 TEXT: Request for opinion, effective date of compensation under 38 U.S.C. § 314(k); (5 U.S.C. § 552(:o(6)) 6. Here the adjudication official has recommended that the payment of benefits should be retroactive to the veteran's initial entitlement dates. FN4 Consistent with 38 C.F.R. § 3.400(k) and 38 C.F.R. § 3.105(a), benefits retroactive to the initial date of entitlement are limited to situations in which there was clear and unmistakable error in a previous determination. The term clear and unmistakable error does not appear in title 38, United States Code. FN5 However, there is regulatory authority for the proposition that benefits may be retroactive to the initial date of eligibility in such a situation. See 38 C.F.R. §§ 3.400(k) and 3.105(a). The fact that this term appears in the regulation can be interpreted as the codification of the longstanding VA policy that a veteran should not be deprived of a benefit as a result of a factual error (such as the loss of medical records or withholding of information by the service department) that forms the basis of a decision later shown to be clearly and unmistakably incorrect. See 22 Op.Sol. 722-A (1935); 32 Op.Sol. 472 (1935). See also Digested Opinion 7-17-84 (1-17 38 C.F.R. § 3.400). This situation must be distinguished from instances where a new statute, or administrative issue alters the interpretation of an already existing benefit. In the later situation, 38 U.S.C. § 3010(g) and its implementing regulation 38 C.F.R. § 3.114(a) control the effective date of the benefit. HELD: Where a VA administrative issue provides the legal interpretation establishing a veteran's entitlement to special monthly compensation authorized in 38 U.S.C. § 314(k), the effective date of benefits is determined by the application of the criteria set forth in 38 U.S.C. § 3010(g) and its implementing regulation 38 C.F.R. § 3.114(a). --------------------------------------------------------------------------------------------------------------- 1 BVA may on its own motion correct an obvious error noted in the record. 38 U.S.C. § 4003©. 2 If the veteran filed a notice of disagreement with the initial agency decision on or after the passage of the Veterans' Judicial Review Act, Pub.L. No. 100-687, 102 Stat. 4105 (1988), the veteran may seek review in the newly created Court of Veterans Appeals (CVA) if he files an appeal with CVA within 120 days of the date the final BVA decision is mailed. 38 U.S.C. § 4066(a). 3 Situations involving a factual determination that are found to be based on clear and unmistakable error are not addressed in 38 U.S.C. s 3010(g). In those cases payments may be made retroactive to the initial date of entitlement. See para. 6 infra. 4 In one situation, the initial compensation date was December 6, 1975; in the other veteran's case, initial compensation was effective June 16, 1983. In both cases, the initial compensation date was the day following release from active duty. 5 The phrase "clear and unmistakable evidence" does appear in both 38 U.S.C. s 311 and 38 U.S.C. s 333(:P, in the context of presumptive service connection.

Oh good. Maybe it is just the C&P examiners (whose opinions they DO read) that they bar from giving opinions... I'm not sure on the directive....I saw it awhile back and didn't seem like it applied to my husband. Then when I got the bright idea maybe we could use it to get him an opinion - I couldn't find it - and when I did - I couldn't find whether it is still in force. Hope somebody can tell us! B) Free

I get so frustrated when I research sometimes. Time after time I see the BVA chastising the VARO, and the Court of Veteran's Appeals chastizing the BVA, and on up the chain. The BVA and the Court consistently say - "since the previous agency didn't do their job - we can't do ours." But instead of just over-ruling the previous agency - they just "imply" they were "wrong" and then throw the ball back to them - leaving the claim in VA limbo. It is almost like this is a game they play with each other - and the veterans are just the playing pieces...the pawns... check and checkmate! Couldn't they AT LEAST establish SOME type of FINE system.... to pay the vets a little. They could do it just like the rating system: Full Failure in duty to assist........$100 Assisting only half way....$50 Going through the motions of assisting while not really assisting...$1000 Failure to read file....$500 Only reading the parts that are not in favor of the vet..$5,000 Kind of like government agencys do to OTHER agencies. When they mess up - they are fined and re-fined until they get it right. With the fine money - they could pay the VETS $500 every time they pass GO Free

This sure seems different than having a doctor state their opinion and give medical sound reasoning for that opinion. It appears that the VA directs clinicians to NOT state opinions - but just discuss objective findings - which leaves the VA free to decide what the VA examiner's actual opinion was. Then, if the VA exam was in your favor - they can deny claims because the examiner's opinion was only implied, or weak. C&P Service Clinician’s Guide "1.15 Should opinions of merit or percentage of disability be given by the examiner? The examining clinician must avoid expressing an opinion regarding the merits of any claim or the percentage evaluation that should be assigned for a disability. An opinion should not be given to the claimant regarding insurability, degree of disability, incurrence or aggravation by military service, or the character and sufficiency of treatment during military service or subsequently thereto. When asked about employability, the examiner should not state that an individual veteran is or is not individually unemployable, but should describe in full the effects of the conditions being examined on functioning, and how that relates to employment. 1.16 How do I give an opinion for nexus (relationship to a military incident? When asked to give an opinion as to whether a condition is related to a specific incident during military service, the opinion should be expressed as follows: 1. “is due to” (100% sure) 2. “more likely than not” (greater than 50%) 3. “at least as likely as not” (equal to or greater than 50%) 4. “not at least as likely as not” (less than 50%) 5. “is not due to” (0%)" Free

That could be a good idea. We considered sending his SSD award letter - but then decided not to. We didn't figure we would have any trouble with proving he is disabled. My husband had his lower lobe of his lung removed in 2000. The cancer returned in 2003. He was scheduled to have his whole lung removed, but when they operated - they found the cancer had spread to his aorta. So they declared his cancer inoperable and closed him back up. He had radiation and chemo -which killed the original tumor - but it is now back and metastatic and he has muliple tumors in both lungs. They respond to chemo for awhile - and then grow again - so he keeps changing chemo. It has been kept to the lungs - but the last PET Scan showed some possible activity in ribs. We are hoping and hoping it hasn't spread to the bones yet. At this point - a cure would be a miracle - and we are certainly open to miracles - but medically it is a matter of buying more time. From what I have read - cancer is 100% -- unless it is considered cured and you are no longer in treatment. So we thought proving 100% disabled is a given. It is the SC that seems to be difficult. We considered sending the SSD award letter - but then thought - if it was not needed to prove disability - and had ANY possibility of actually turning the RO against his claim (Retired Air Force, smoker, already getting SSD - why would he "deserve" more....) that it might be best not to send it. And we are not sure what is in the Social Security File. All we DON'T need is one more form that states "smoker with lung cancer" getting in the hands of the RO. So since we thought - we don't need it to help - and it might hurt - don't send. I will discuss it with him again.....as after reading your post I realized though it would be apparent to 99.9% of the human race he is disabled - it might not be apparent to the RO. We haven't recieved a packet from the BVA. We think we are in the reopening phase. He thought it WAS in appeal for 2 years - because they sent him a letter which said it had been forwarded to the BVA - but we have heard the claim was closed from the Senator's office. We have asked for verification of the status of the claim. I haven't seen anything about speeding a claim up at the VARO though. Social Security has a process that if you have a terminal illness - they make it a TERI claim and zoom it through. But then again, their standards are different. If you are not expected to live over a certain amount of time - you are approved. You don't have to prove you are not able to work - or that it happened in the service. Free

The toxicology unit from United States Naval Flight Surgeon Handbook: 2nd Edition 1998 http://www.medicalcorps.org/manuals/flight...ook/9toxic.html Toxicologic evaluation involves several concepts which must be defined. Risk denotes the probability (expected frequency) that a chemical will produce undesirable effects under specified conditions. NEL (no effect level) is the maximum dose that has not induced any sign of toxicity in the most susceptible species of animals tested and using the most sensitive indicator of toxicity (not applied to carcinogens). There is no threshold defined for carcinogens because cancer cells can be induced by a single change in the cellular genetic material and they are self-replicating. The dose-response relationship is graphically displayed by plotting the frequency of an event vs. the dose on a log scale, which results in a sigmoid-shaped curve. The portion of this curve between 16-84% response is nearly linear and represents one standard deviation each direction from the mean. The LD50 is also utilized to classify the toxicity of substances, as demonstrated in the following: Category LD50 Supertoxic 5mg/kg Extremely toxic 5-50 mg/kg Highly toxic 50-500 mg/kg Moderately toxic 0.5-5 g/kg Slightly toxic 5-15 g/kg Practically non-toxic 15 g/kg Duration and frequency of exposure are also important parameters: acute exposure - an exposure of 24 hours or less. subacute exposure - repeated exposure over one month. subchronic exposure - exposure occurring over 1-3 months. chronic exposure - over 3 months Asbestos Chemical nature -- a generic term for naturally occurring fibrous minerals. The fibers are made up of fibrils which are not visible to the optical microscope, but are to the electron microscope. Method of absorption -- serious toxicity is from inhalation. Visible fibers break into fibrils in the lung. Associated clinical syndrome -- Three major distinct syndromes: (1) Asbestosis, (2) Lung cancer, and (3) Mesothelioma. Asbestosis is diffuse interstitial fibrosis with a small tight lung. This is due to massive exposure to the airborne fibers. This is the most common disease state associated with exposure. Lung cancer is the most common cause of death, however. This is induced by imbedded fibrils in the lung. Asbestos workers have ten times the lung cancer death rate of non-asbestos workers from lung cancer, all other things being equal. Smokers add a multiplier of eight to this. Mesothelioma was previously extremely rare and has increased to fairly common in asbestos workers. This is what is called a signal neoplasm in preventive medicine. Pulmonary plaques are also to be found after exposure. Although they are not associated directly with illness, they are yet another indicator of the reactivity of lung tissue with asbestos exposure. Association with USN -- previously ships were full of asbestos, however, new ships have very little. Ripout and breakup of old ships is quite hazardous. A very common mineral fiber. Detailed safety procedures are necessary when working with asbestos. Latency of disease make cause and effect difficult to measure.