free_spirit_etc

So my question is - should I use this as evidence?

You also want to get a disk from the 2003 scan. Not just the report. You want to get copies of the actual scans. Then a doctor can look at those and see what kind of cyst it showed. That would be very important in a negligence case. You also want to get a copy of the lab report -- the biopsy report. That should tell you what type of cancer it was, the size (which might be a bit different than what the scan showed), the margins, etc. The lab report should show what was biopsied, and what was cancerous (for instance, my husband's report showed the mass was cancerous -- adenocarcinoma -- but the lymph nodes were negative for cancer.

Oh... so you are saying it was listed as one of your medical conditions on your med records, but not on your claims? I had thought you meant it dropped off your claims. If your VA doctor won't discuss it, you might want to talk to a private doctor and see if they will fill out a DBQ for you and / or write an IMO that states it is a secondary condition. Here is an interesting article that suggests that people with IBS have almost a two-fold chance of getting MS.

You have a great point. You also might want to check out some BVA cases and see if they rate it as a separate condition, or if they consider it part of a manifestation of MS that you are already rated for. I don't know the answer to that. But a little research could help you find out fairly quickly.

Free I appreciate you raising these questions, because surely they will try to discount the findings. \Put yourself in my shoes for a moment though. I think even if a veternarian found a cyst on a dog, they would at least inform the owner. I specifically said, "I agree they should have told you about the cyst though, regardless." "Granted, I think they should have followed up on it during your medical care." However, until you know specifically what they found in 2003, what the "standard of care" is for that, whether what they found in 2003 was connected to what they found in 2011, and if their actions / lack of actions actually caused you greater harm than if they would have done something differently, it is hard to build a negligence claim. I tried to be helpful. Apparently I wasn't. I wish you the very best of luck with your claims.

In the meanwhile, you might want to work on filing the CUE claim for the kidney cancer that they didn't rate....

"The SOC or SSOC could parse or manipulate critical statements in the actual C & P exam." Yep....

It was too much of a surprize to the doctors when it was incidentally found on ultrasound, when they called they didnt say. Sir the cyst that has been growing on your kidney seems to have gotten larger, and looks cancerous, come in so we can take a better look at it on ultrasound. and keep in mind, we are talking CENTIMETERS here, not milimeters. thats almost as large as the kidney itself. I dont think its just everyday, routine to find a 5 centimeter cycst on a human vital organ, From what I have read, renal cysts are fairly common. It seems that what they noticed on the 2011 scan caused them concern, while what they found on the 2003 scan did not. who they already knew had a disease that makde kidney cancer likely, to just dismiss the finding. I am not sure you have a standing here because the studies that linked kidney cancer to hepatitis C are fairly recent. So you can’t go back and say that the VA doctors should have known you were at high risk for kidney cancer in 2003 because a 2010 study found a connection. An attorney will have to tell me different .. Im abt tired of farting around with these goons, as soon as I get my descision on my refiled claims, Im going to consult with an attorney, I think seeing an attorney might be a good idea. You also might want to ask a doctor about the matter. And the fact that they never told me abt this large cyst, that may have been cancerous at the time, because they never biopsyed it, makes me even more suspect that someone dropped the ball. They might not have had to need to biopsy it at the time. They would have only needed to biopsy it if they suspected it to be cancerous. I agree they should have told you about the cyst though, regardless. look at the big picture, how did it progress from a 5 centimeter cysts that they evidenty thought was cancer free, to a 7 mm,x 6mmx 5 mm cancerous growth, that also consumed my adrenal gland, and some of my adrenal vein , if they were tracking it.? 5 cm = 2 inches 7 cm = 2.8 inches. 2003 – 2011 = 8 years. As most things I have read say there is little reason to treat renal cysts unless they are producing symptoms, and that renal cysts rarely turn cancerous, you will have to show that they were negligent in their “standard of care” to not monitor it, that they would have found the cancer sooner if they had monitored it, and that you were harmed by the later discovery (i.e. you are worse off now than if they had found it earlier. Granted, I think they should have followed up on it during your medical care. However, for a negligence claim you would have to show that I dont think protocol is to make findings of that nature, then just wait, until it becomes full blown cancer, attacking several organs, and the procedure becomes life threatening/ . If that is how far medical technology has come, we are screwed. There would be no need for them to remove the cyst until you had cancer, unless the cyst itself was causing symptoms that they could not treat any other way. As long as it was just a cyst that was causing no symptoms, the risk of removing it most likely exceeded the risk of leaving it alone. What is more important than the size (as size doesn’t really indicate cancer) is the appearance of the cyst. It seems like they might have considered it a simple cyst in 2003 (and simple cysts are rarely cancerous). However, in 2011, it looks like the scan revealed a complex cyst (which can be cancerous). So to adequately address this, you would probably want to get a copy of the actual report from the scan AND a copy of the scan itself. Have another doctor look at the scan to see if the cyst appeared simple or complex. If the cyst appeared complex, and they failed to monitor it, then you have something solid to base your argument on (i.e. misdiagnosis). But you will still need to show that you were harmed by their failure to diagnose the cancer earlier. So you would need a doctor to state that the cancer would not have spread to the adrenal glands if it had been found sooner. Proving harm from the kidney removal would be difficult, as your kidney most likely would have been removed regardless of when they found it. However, if a doctor stated they could have removed the cancer without removing the kidney – then you have shown harm. Good article here: http://my.clevelandclinic.org/disorders/kidney_cancer/hic-simple-kidney-cysts.aspx I am not trying to be difficult. I am playing devil’s advocate – which is something you need to do if you pursue a negligence claim.

To ___ I requested a complete copy of my C-file on ___. However, when I received it, I noticed some records are missing. I am specifically referring to records involving my kidney cancer and subsequent surgery. I am assuming these were in my C-file at one point because I was granted a 30% rating for the removal of my kidney on ____. I would like to receive a copy of ALL of the records (both paper and digital) that were used in making the decisions on my claims.

"FREE as far as your question abt what they referenced in my descision, they didnt even mention the cancer, they just said 30 percent for removal of kidney,.. period," I was specifically asking about the evidence they listed. Did they list the surgery reports, and other documentation involved, as evidence they used on that decision? If so, they might have accessed the records digitally and not printed them for the paper C-file. Have you asked for a copy of your digital records?

"I recall someone on this site speaking of a 5150 claim or tort claim or something likel that .as I understand it u cant file a suit against the govt without first filing a claim. I just cannot think of any excuse they could give me, as to why they did not inform me of the finding on my kidney in 2003, and never routinely checked it after finding it, or track measurements or whatever. after the did the ct scan on 2011 they said they were quite sure it was cancer. so evidently they can see something with the machines, why couldnt they see it in 2003, or later on before the cancer had infested my adrenal gland and vein. ? Am I overeacting here?" It would be hard to tell if you were overreacting without knowing more details. You can have a doctor look at the records and see what they think. But even if they were monitoring it, it seems like it was growing slowly or stable for quite some time - based on the size difference in 8 years. My husband had lung cancer and they didn't monitor him very closely until the cancer was redetected. They referenced growths which appeared to be stable and were not of concern in a couple of his reports.

Sierra, I am not seeing that as huge growth between 2003 and 2011. The 2003 report just states 5 cm -- so it would be 5 cm at the largest dimension. So if it was spherical, it would be approximately 5 cm all the way around. Something that is 5 X 6 X 7 is not a whole lot bigger than 5 x 5 x 5. Granted, it is somewhat bigger. 7 cm is 3/4 of an inch larger than 5 cm. But 3/4 inch is not much growth over a period of eight years. There is an article on kidney cysts that tells you a little about them. http://www.kidneycancerinstitute.com/kidney-cyst.html They can generally tell if the are cancerous or not by their appearance. They are also fairly common. So it is possible the tumor and the cyst might not be the same growth. I agree they should have told you about the cyst. And you can certainly ask the doctor about it. But if it is the same growth it would be a very slow growing tumor.

Sierra, Again -- did they list those records as evidence on that decision? They might have just accessed them digitally.

I think this is somewhat odd. Since they granted you SC for the removal of your kidney, it sure seems like the records from the surgery that removed it would be in your C-file. Are the records listed as evidence on the decision where they granted you SC for the kidney removal?

I requested information from some of the bases where my husband worked as an electrician in asking for information about their asbestos management plans and occupational medical surveillance programs during the time my husband was working as an electrician. One base reported that their medical surveillance was not started until 1996. However, the base where my husband was stationed from Sept. 1979 – October 1982 sent me a document that doesn’t specifically reference asbestos screening, but does show that interior electricians had Required Special Purpose Examinations that included Pulmonary Function Tests (FEV1 and FVC) and Chest X-rays every two years. (This correlates with the tests required by OSHA). This document is dated August 7, 1982. So apparently they started their medical screening programs much earlier than the other base. Another document dated August 19, 1982 lists the names of the workers who were in the program. Though they blanked at all the names besides my husband’s name – his name is on that list. However, it has a line drawn through his name. Some names have dates written next to them. There is also a notation on the document that says “April 15, 1983.” So this would indicate that whoever wrote the handwritten comments on the document was still noting things as late as April 1983. So I am not sure whether to use this as evidence that my husband was more likely than not exposed to asbestos. My thoughts are that they did not get around to screening him before he transferred to Korea in October 1982 – so they crossed his name off the list. But I don’t have any proof of that. The only proof I have is that many bases didn’t have medical surveillance in the 1980’s, that this particular base started their medical surveillance in 1982 (a couple of months before my husband transferred to another base), that interior electricians were included in the surveillance, that my husband’s name was on the list to be included (though it was later crossed off). I think my husband slipped through the cracks on the medical surveillance because the bases all started the programs at different times, and he stopped working as an electrician in 1983 when he returned from Korea. Actually, if he had been on any base when a medical surveillance program began that had tested him once under that program; they would have continued to monitor him even when he transferred to another job classification. I think this could still be good evidence, as it shows the job field my husband worked in from 1970 – 1983 was classified as a job that needed to be monitored for asbestos exposure when the programs began. And my husband’s name was specifically on the list of people that needed to be monitored. However, the fact that his name was crossed off could be used to say he apparently didn’t need monitoring. I think a “reasonable mind” could see that it was more likely than not he was exposed to asbestos due to his job classification for 13 years. But with his name crossed off that list – someone could try to interpret that another way. Something that is puzzling though, is that it seems like he should have received a physical before he transferred to Korea, and that he should have triggered the medical surveillance at the time of his physical. I am not sure why he didn’t.

Ketchup, I already had my hearing September 3. We were granted 3 months to submit additional evidence. But my case has already been heard. I have no idea why he asked me to obtain my husband's military personnel records, and then submitted his argument before I received those. And I am concerned that he was so snarky when I asked for a copy of what he submitted, and told me he isn't required to send me a copy, and that I will have to request a copy from the Regional Office. But I want to make sure he doesn't do anything to damage my claim, if he hasn't already done so.

Dept of Veteran's Affairs FOIA http://www.foia.va.gov/FOIA_FAQ.asp#FAQ#2

Thanks ketchup. I faxed a copy to the general BVA number. I didn't have the team number on it. I am also sending a follow up requesting a copy of what the VSO submitted, and to try to assure I still have time to submit my remaining argument. But as far as revoking a representative - I wasn't sure if I had to show good cause. § 20.1304 (b) Subsequent request for a change in representation, request for a personal hearing, or submission of additional evidence— (1) General rule. Subject to the exception in paragraph (b)(2) of this section, following the expiration of the period described in paragraph (a) of this section, the Board of Veterans' Appeals will not accept a request for a change in representation, a request for a personal hearing, or additional evidence except when the appellant demonstrates on motion that there was good cause for the delay. Examples of good cause include, but are not limited to, illness of the appellant or the representative which precluded action during the period; death of an individual representative; illness or incapacity of an individual representative which renders it impractical for an appellant to continue with him or her as representative; withdrawal of an individual representative; the discovery of evidence that was not available prior to the expiration of the period; and delay in transfer of the appellate record to the Board which precluded timely action with respect to these matters. Such motions must be in writing and must include the name of the veteran; the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf); the applicable Department of Veterans Affairs file number; and an explanation of why the request for a change in representation, the request for a personal hearing, or the submission of additional evidence could not be accomplished in a timely manner. Such motions must be filed at the following address: Director, Management and Administration (01E), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

In this thread the OP said she had good luck emailing a few attorneys listed at NOVA NOVA http://www.vetadvocates.org/

Is it possible that there is anything you can get them to grant at the current level -- like the increased rating for diabetes -- so you can get some more income coming in while you fight the rest? Some of the other issues are very complicated and would take a long long time.

This post mentions a couple of good attorneys. I get what you are saying about the SOC. But they shouldn't have held a DRO review if you have not been issued a statement of case. And I agree, the claim would remain pending. The problem would be is they would keep going through all the motions - then you would wait a long time for your case to be certified to the Board -- only to have the Board return it to the RO with a remand for an SOC. My husband's first appeal went all the way to the BVA -- and they remanded it to the RO because they said the file didn't have my husband's DD214. That added a year to the process because the RO had to add the DD214 and send it back to the Board. I have no idea why the BVA couldn't just have contacted my husband and ask him to send ANOTHER copy of the DD214. It seems amazing that his claim had to take another trip through the loop for something the VA had easy access to. So though it can be a good thing sometimes if the RO messes up in a way the claim can be considered still pending - I am assuming that you would like to get this all cleared up in as few as years as possible. Do you have the address if the National Director of the American Legion? I am having my own issues with their VSOs

"A few months later during another C&P I was diagnosed with COPD." If you were diagnosed within a few months of the first C&P - was this additional C&P in your record when they denied you?

I can only hope he re-stated my case, instead of messing it up, or withdrawing my appeal or something. The more I think about it, the more I wonder if he even has done anything on the case. He returned my call immediately - and told me that he had already done everything that was needed and submitted it to the judge. But then when I asked what he had submitted, he said he wouldn't know that without pulling the file. So he hadn't even looked at the file before calling me. So he might just tell everyone he had "done everything needed" and the case is with the judge -- regardless of what he has done. But it is odd because he said he wanted to look at my husband's service personnel files -- and told me to order them. I ordered them and was going to tell him I had them -- but he said he had already submitted everything. As the judge gave us 90 days (until December 3) to submit additional evidence, it seems odd that he would work my claim prior to that deadline and submit something before he even got the records he told me to obtain. But this guy makes me very nervous - and he is very rude. He did say I could go ahead and submit evidence to the judge. So I don't think he withdrew my appeal. But he was bound and determined that he won't send me copies of anything he says he submitted.

I sent this immediately to get that guy OFF as my VSO: (I found it in a post by Carlie. Thanks Carlie!) November 6, 2013 To: Department of Veterans Affairs My Power of Attorney is currently held by the American Legion. Effective immediately, I revoke any and all Power of Attorney held by any person or organization. I will continue to seek just and fair adjudication on all aspects of my claims for VA benefits under 38 CFR and The United States Code on a pro se basis. I request that I still be granted the remainder of the 90 day period of time the judge allowed to submit additional evidence / argument in support of my claim. Respectfully submitted, XXXX But - the information you get from the BVA says you have to show good cause for appointing or changing representation after the 60 day time frame they give you to do so. So I don't know if I need to follow up with a "good cause" request. And I have been hesitant to do that because you don't know how closely aligned the national VSOs are to the attorneys / judges.

I appointed a VSO at the time of my hearing. The hearing was awful. I felt comfortable with the judge. But the VSO treated me like an idiot. I know I should have fired the VSO immediately. But I did not. We were granted 3 months, until December 3, to provide additional evidence in support of my claim. The VSO had told me to obtain copies of my husband's military personnel files. I have now done that. I also hoped he might actually read my claim in the interim. I called the VSO today to inform him I had received the files he had requested I obtain and to see where we stood on my case. He told me that he had submitted everything to the judge already and that it was DONE. He said he had already done what he needed to do on my claim. I asked him what he submitted, and he said he wouldn't know that without looking at the file -- and he couldn't "jump around like that." I asked him to send me a copy of what he sent to the judge and he told me he is NOT REQUIRED to send me anything. He was very curt and told me if I want copies of what he submitted I have to contact my Regional Office and get them from them. I want to revoke his POA IMMEDIATELY -- and so I will fax a revocation to the BVA. Should I be specific as to why? Or just state I want to revoke his POA? I hope he didn't hurt my case really bad by arguing against my claim. I don't know why he refuses to send me a copy of what he submitted. I don't know if that is because he submitted something he knows I wouldn't like, or if he actually has no idea what is going on with my claim, didn't want to bother to look before he returned my call -- and just told me he submitted everything without even checking - and felt like he was put on the spot when I asked for a copy. OMG! I was shaking when I got off the phone!!!