free_spirit_etc

Thanks Berta! "I just meant that VA will look for a smoking history to try to deny asbestos claims." That was one thing that really threw me for a loop at my hearing. I mean there is no reason to hide the fact my husband smoked.... but there was no reason to highlight it either - unless it tied directly to proving the claim. I took my IMOs to show my husband's cancer started in service (so what caused it is not totally relevant). What was one of the first things the VSO asked me? Is it true your husband started smoking before he joined the service? Huh??? Why in the world would MY representative be asking me that??? I said I don't know. He rolled his eyes. I said I didn't know for a fact when he started smoking. I didn't know him back then. So he asked how much my husband smoked. But again - why in the world would your OWN representative even be asking those questions. It seemed like he was working on getting the claim denied.

http://www.idf.org/sleep-apnoea-and-type-2-diabetes It does look like there could very well be a link between diabetes and sleep apnea.

Jayco, There are certain presumptions for Vietnam Vets for diseases that AO was known to cause. So if you served in Vietnam, and you eventually got those diseases, they are service connected. As far as the other conditions - it is hard to get those service connected when diagnosed a long time after service, unless you can show you had signs and symptoms of them in service OR they can be linked to your service connected diseases. So any condition that can be caused by your heart disease or diabetes (or caused by the treatment or medicine) can be granted secondary service connection. I think you can get your sleep apnea supplies from the VA regardless of whether it is service connected. If your doctor would connect the sleep apnea or the diverticulitis to your SC'd heart disease or diabetes - they could very well be service connected.

I focused building the when it started part of the claim, more than the asbestos part of the claim. I think it would be easier to substantiate and harder to disagree with. And there is no medical evidence in the file that says it did not start in service. In fact, the Radiation Oncologist (who actually did bench research on cell growth) said there is no way any credible doctor could say that my husband's cancer did not start in service. He said that isn't even scientifically plausible. On his second phone call to me he said "I can't even believe they are making a widow of a veteran fight for this." He told me any doctor should be able to tell from looking at the records that my husband's cancer started long before he retired - and he couldn't believe they had not granted the claim from the start. I do think the VA knows this -- and that is why they have danced around and side-stepped the topic. My husband's initial claim was his doctor told him it had started 12 to 15 years before it was diagnosed. He added the asbestos exposure as a secondary. The VA quickly changed the claim from "Lung cancer, to include due to asbestos exposure" to lung cancer due to asbestos exposure. They never addressed when it started. My husband wrote to the VA and told them they still hadn't adjudicated the claim on the bases of when it started. We also wrote in 2006 and told them they were limiting the scope of the claim. Yet - even when they said they got an opinion addressing the issue of when it started, all the doctor did was discussed how the treatment in the SMRS wasn't related to the cancer. As far as the asbestos issue - There is so much controversy about the issue - so I think there could be IMOs either way that could be backed by studies. Most studies do show that the chances of getting cancer from asbestos and smoking combined are MUCH greater than the chances of getting cancer from one or the other alone. But there are still a lot of doctors who say that if you smoked, the smoking was a bigger contributor than the asbestos, and therefore the asbestos didn't cause it. I think this could come down a lot to the personal feelings of the judge. I have seen a lot of claims granted with what seemed to be pretty week medical opinions. And I have seen claims that had what seemed to be pretty strong IMOS denied.

"Actually I do have a comment on the 2001 'note'.from Dr. XXX And I hate to be negative here,but that note,in my opinion, was exactly what VA needed to deny the asbestos claim." I am not clear what you mean here. You mean the part about smoker 10, absestos 8, together 80?

Thanks Berta, I will read over what you wrote. The IMOs and CVs of the doctors that wrote them are attached in Posts 14 and 15. I was actually pretty confident about my claim until I went to the Hearing. Then when the VSO started dismissing all my evidence - I let that get me all rattled and doubting everything again.

Jayco, How long have you been out of the service and when did you file your initial claim? You stated that your diverticulitis was discovered 15 to 20 years ago. Was that before, during, or after service?

Welcome Jayco! A year to add your spouse? That sounds like Chicago to me. I would say yes on appealing the sleep apnea - as long as you think it started in service. How long have you had sleep apnea? Did you have any symptoms in service that could be connected to it? Your spouse might know more about that than you do. ;)

Since I now have my IMOs submitted, which address the issue of when the cancer started, I think my best bet is to highlight the important points from the IMOs, briefly mention other evidence in the record that supports the opinions, mention that nothing in the record conflicts with the IMOs (even the lack of a tumor showing up in the 1996 x-ray, and even the VA examiner's opinions.) As far as the asbestos exposure issue is concerned, it would probably be best to cover new evidence, and reiterate existing evidence of exposure, point out the error of the VA relying on the VA examiner's opinion, point out my husband's treatment record shows the doctor thought he had an 80 x's risk. I was thinking there was some decision that talked about how notations in the treatment record are generally considered credible.

"And if TC has another Vet's records mixed in with his, he needs to have them expunged and a de novo adjudication free of the taint of contamination." So if you have other vets records in your C-file can you ask that everything be readjudicated? Or do you just mean that the records need to be removed before another decision is made?

I am only semi-familiar with two of the conditions (in regard to rating) because those are two of the conditions my husband had. Sinusitis - It says the disease has progressed, but I don't see any specifics. Are your symptoms incapacitating? Or how many times per year do you have non-incapacitating episodes? Where do your symptoms fit into the rating schedule? General Rating Formula for Sinusitis (DC’s 6510 through 6514): Following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries................................................................... 50 Three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting......................................................................................................... 30 One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting ........................................................................................................ 10 Cervical Neck Conditions - how much has the range of motion decreased? Where does it fit in the rating schedule? The Spine Rating General Rating Formula for Diseases and Injuries of the Spine (For diagnostic codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes): With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease Unfavorable ankylosis of the entire spine............................................................... 100 Unfavorable ankylosis of the entire thoracolumbar spine......................................... 50 Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine............................................................................. 40 Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.................................................................... 30 Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis................................................................................................ 20 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.................................................................................................................... 10

Still talking to myself :) "Additionally, we are unable to grant service connection for this condition as it has not been found to be associated with the veteran’s exposure to asbestos, but rather has been found to be due to his use of tobacco." A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458 (1993). There is no medical evidence in the file that indicates asbestos exposure cannot be associated with my husband’s cancer, other than the 2002 VA examiner’s opinion that was made on the presumption that my husband was not exposed to asbestos. The fact that the examiner also stated that my husband had no shortness of breath (when the pulmonary function tests clearly indicated he did), stated that my husband did not have any unique medical conditions that are associated with asbestos (while failing to mention my husband’s Interstitial Lung Disease), and stated that my husband had no apparent residuals from his lung cancer (though my husband had an entire lobe of his lung removed) should further call into question the credibility of his opinion. Dr. XXX, provided my husband with the handwritten note on October 3, 2001 which states: Former Smoker Best is 1.4 Times Smoker 10 Asbestos 8 Together --- 80 ß--- Now Dr. XX further substantiated this two years later when he wrote in the Chronolical Record of Medical Care 11/5/2003 - (In Medical Records from xxxx Air Force Base) states: Hx of Lung Cancer. S/P resection at SLU September 00 3 cm & LLL-ectomy. Adeno CA. Smoker & Asbestos Exposure. Impr. – 1. Poss Adeno CA Stump Recurr 2. 1st CA 2000 3. Exposure Cigs & Asbestos ---> 80 x’s Risk Medical Treatise evidence supports this opinion is based on sound medical principles. The synergetic effect of the combination of smoking and asbestos exposure is well-researched and well-documented. There is no credible medical evidence in the file that conflicts with this.

"We are unable to resolve reasonable doubt in favor of the claimant in this particular instance, because the evidence in favor of granting the claim is less than the evidence in favor of denying the claim." With the recent submission of the two medical opinions, the evidence in favor of granting the claim far exceeds the evidence in favor of denying the claim. Both of the recently submitted medical opinions specifically state that it is more likely than not my husband’s cancer was present while he was still serving in the Air Force. These opinions are fully articulated and based on sound medical reasoning. These opinions substantiate the less formalized opinions, and treatise evidence we had already submitted. There is no medical evidence in the file that conflicts with medical opinions I have submitted. There is no medical opinion that states my husband’s cancer did not start while he was in the service. The October 2007 VA examiner opinion states the signs and symptoms listed in my husband’s SMRs are less likely than not early manifestations of my husband’s lung cancer. The examiner did not offer an opinion in regard to whether my husband’s cancer started while he was still on active duty.

"In absence of competent medical evidence that shows that the veteran’s adenocarcinoma of the lungs was at least as likely as not present during his service in the Air Force, the claim for service connection for adenocarcinoma of the lungs remains denied." The recently submitted medical opinions further substantiate the evidence we have already submitted that because of the type of cancer my husband had, and the known information about the cancer, it is more likely than not that his cancer was present during his service in the Air Force.

"The veteran also provided statements from Dr. XX, but these only speak to the mean doubling time of adenocarcinoma of the lungs being 180 days. Dr. X also does not provide a statement to the effect that the veteran’s cancer was present during his active service." Dr. XX’s statement, while not a fully articulated opinion, was still evidence which substantiated the fact that my husband’s cancer was a slow growing type of cancer. This evidence has been further substantiated with the recently submitted medical opinions.

Okay... I know this is getting long - but I am addressing the SSOC bit by bit. This is the first time I noticed they called my husband's statement a " lay statement from a person with no specific expertise in the field of oncology" and stated it has no probative value.

Additionally, the veteran stated that prior to his death that Dr. XXX, of the XXX Air Force Clinic, told him that his cancer was probably present during his service in the Air Force. A full review of the claim file shows no statements from Dr. XXXX, which suggests that the veteran’s cancer was present during his active period of service. The veteran’s statement was considered, but because it was a lay statement from a person with no specific expertise in the field of oncology, it has no probative value. My husband was not offering a lay medical opinion. My husband was reporting what the doctor had told him. Additionally, my husband submitted a copy of the handwritten note Dr. XXX had given him during the conversation. Though the handwritten note did not come right out and state my husband’s cancer started while he was in service, it provided information to substantiate that. In November 2001, my husband reported to the VA that he had initially been informed that his cancer was small cell lung cancer, which had a rapid doubling time. He further reported that during his annual follow-up he discovered the lab report said that he had adenocarcinoma, rather than small cell lung cancer. He stated his doctor explained the doubling time of his cancer to him (approximately 6 months) and explained that for the cancer to be the size it was when it was discovered and removed would have meant the cancer would have been in place for 12 to 15 years. To substantiate what my husband stated the doctor had told him, my husband submitted a copy of the handwritten note the doctor had written during the conversation. On this note, Dr. XXX had written: Asbestos Small Cell 21 day = DT 30 DT = 1 cm = 2 years + 10 DT till Death Squam Cell Cancer DT = 3 mon. *** Adeno CA 3.1 cm DT = 6 mon 15 yrs till 1 cm. 1.25 1.65 2.05 2.65 3.25 ß 35 Former Smoker Best is 1.4 Times Smoker 10 Asbestos 8 Together --- 80 ß--- Now Dr. XXX also noted in the treatment record on October 3, 2001 “Also likely Asbestos Exposure as Electrician 1969 – 1982.” “Chart & Consult & Pt in Error & pt in Non-Small Cell CA & Not Small Cell. Important differences explained to pt. e.g. Poss Adeno CA unk 1 ° I believe the RO was in error to call my husband’s statement a lay statement from a person with no specific expertise in the field of oncology that has no probative value. My husband was not offering his own opinion. He was merely reporting what his doctor had told him. He additionally substantiated this with the handwritten note from the doctor which noted the relative doubling times and risk from asbestos exposure and smoking. In July 2006, we submitted a wealth of evidence to help establish that Dr. XXX’s opinion that my husband’s cancer started in service (based on the doubling times and cancer growth patterns) was based on sound medical reasoning. §3.159 does not limit competent medical evidence to only what is written in the treatment record, or only formalized medical opinions written to the VA in support of a claim. I believe Dr. XXX’s handwritten note constitutes competent medical evidence, as it was written by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. We further supported this handwritten note with information from medical treatises. The recently submitted Independent Medical Opinions further substantiate that the information Dr.XXX gave my husband about adenocarcinoma doubling times, growth rates, and number of doublings required to reach the size my husband’s tumor was when it was diagnosed less than 2 year post-retirement. The recently submitted medical opinions substantiate what my husband reported Dr. XXX had told him – That adenocarcinoma has a standard doubling time of 6 months, that it takes a tumor doubling about 35 times to reach the size my husband’s tumor was when it was diagnosed, and that it is more likely than not my husband’s cancer started while he was still in the service.

And more SSOC: The veteran’s chest X-ray, taken June 24, 1996, just 2 years prior to his retirement from the Air Force, shows no evidence of a lesion or opacity consistent with lung cancer. The Independent Medical Opinion written by Dr. XXXX states “it takes from 5 to 10 years (and in some cases much longer) for a single human cell to transform from a microscopic cancerous form into a tumor that is large enough to be discovered on physical exam, by x-ray or by blood test.” The Independent Medical Opinion written by Dr. XXX states “Finally, the fact the veteran’s cancer was not detected on the 1996 chest x-ray is to be expected and not a certain indication that the cancer was not present in 1996. It merely indicates the cancer was not detected at that time with that x-ray. Chest x-rays are notorious for being poor instruments for detecting early stage lung cancer. Randomized controlled trials have consistently found chest radiographs have very limited use in screening for cancer. They are not sensitive enough to detect small tumors, and even many large tumors frequently remain undetected for a variety of reasons. Another way of stating this is that the false negative rates of chest X-rays are well documented and they are known to miss most lung cancers for the majority of the tumors life span. “ The medical evidence clearly shows that a negative chest x-ray is not proof that someone does not have cancer.

Moving right along on the SSOC: "Additionally, Mr. XXX also maintained that his adenocarcinoma of the lungs was present during his active service, given the slow growing nature of the tumor. In support of this contention, both you and the veteran submited several journal articles and clippings which show that adenocarcinoma of thelungs has a douibling rate of approximately 180 days. The contention was that because of its slow growth rate, and the fact that the cancer was found and surgically removed in September 2000, at XXX, that the cancer must have been present during active service." My husband initially filed a claim for service connection for his cancer in October 2001, over a year after it was diagnosed. He explained in his letter that his doctor informed him that because of the growth rate of the type of cancer he had, that his cancer had most likely been present for a significant amount of time before he retired from the military. To support this, my husband included a copy of the handwritten note the doctor gave my husband when he was explaining the facts to him. The note included the fact that adenocarcinoma has a doubling time of 6 months, that at the standard growth rate adenocarcinoma would take 15 years for a tumor to reach 1 cm, and that it would take the cancer doubling 5 more times to reach the size of 3.25 cm (the approximate size my husband’s tumor was when it was diagnosed in 2000.) The journal articles we submitted substantiated that the information my husband’s doctor told him, and wrote on the handwritten note was based on sound medical principles. We submitted treatise evidence from relaibe sources that confirmed that the standard doubling time of adenocarcinoma of the lung is 180 days. (The note from the doctor stated 6 months), that it takes a tumor doubling approximatley 30 times to reach the size of 1 cm (the note from the doctor said 15 years * Note 30 doublings Xs 6 months = 15 years), and that it takes cancer doubling 35 times to be 3 cm (the doctor’s note stated 3.25 ß------- 35) The doctor also noted “Adeno CA 3.1 cm,” which is the type of cancer my husband had and the size it was when it was removed. The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). Additionally Hensley, 212 F.3d 1255 (Fed. Cir. 2000) states: “A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case.8 See also Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that medical treatises can serve as the requisite evidence of nexus). The treatise evidence we submitted was not based on an unsubstantiated lay medical opinion. My husband was not the one who decided his cancer started while he was in the service. His doctor informed him that it did. His doctor also provided him with a handwritten note that gave him the medical reasoning to explain why he was telling him that. The treatise evidence was submitted to help establish the fact that the information given to my husband by his treating physician was based on sound medical principles. The treatise evidence, when combined with the handwritten note of the doctor, discussed the facts with enough certainty that there was at least a “plausible causality” that it was more likely than not that it would have taken longer than two years for my husband’s tumor to grow to 3.1 cm. This has been substantiated by two Independent Medical Opinions that have since been associated with the claim.

Continuing on addressing the next part of the SSOC: “Additionally, during the veteran’s lifetime, it was his contention that his exposure to asbestos was what caused his adenocarcinoma of the lungs. During the pendency of his claim and appeal several statements were submitted from fellow service members, that confirms the veteran’s exposure to asbestos. However, upon a thorough review of the case, the VA examiner, in his report dated March 19, 2002, states that the veteran’s adenocarcinoma of the lungs is due to the long-term use of cigarettes, and not related to asbestos exposure. The examiner’s rationale was that the veteran had at least a 40-pack year history of smoking, which was the likely cause of the veteran’s cancer.” The Regional Office was in error to rely on the March 2002 medical opinion to deny my claim on the basis of asbestos exposure. The examiner clearly indicated in his opinion that he presumed my husband was not exposed to asbestos. To concede that my husband was exposed to asbestos, but continue to rely on an opinion that presumed my husband was not exposed to asbestos is clearly erroneous. My husband conceded the fact that his smoking most likely played a role in the development of his lung cancer. However, he maintained that his exposure to asbestos also played a contributing role. Due to the well-documented synergetic effect of the combination of smoking and asbestos exposure, I would not expect the VA to rely on a medical opinion that doesn't even take my husband's asbestos exposure into consideration, in order to deny my claim. Additionally, we submitted a request that the VA consider this opinion inadequate during my husband’s lifetime. The Regional Office did not address our request, yet continued to rely on the opinion. Reasons we considered the opinion inadequate included: 1. The examiner presumed my husband was not exposed to asbestos because his medical records did not indicate any industrial hygiene surveys or show any evidence of any unique occupational health surveillance programs. However, the examiner did not discuss the fact that my husband could not have been part of any such programs because the Air Force did not have any occupational safety programs for asbestos until after the mid 1980’s. 2. The examiner gave no reason why he ignored the evidence in my husband’s medical records that indicated asbestos exposure including: a. History / Progress Notes dated September 20, 2000. XXXX Hospital – Dr. XXXXX, M.D. (Surgeon) states: “Patient admits to asbestos exposure through wire insulation while working as an electrician.” b. The Nursing Assessment from xxx Hospital 9/29/2000 also notes under Respiratory system: · Asbestos exposure · Lung CA · Cough c. Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. XXXX (In Medical Records from XXXXAir Force Base) states: “CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN Also likely asbestos exposure as electrician 1969 – 1982 d. New Patient Note 10/10/2001 – XXXX, MD – Oncologist (In Medical Records from XXX 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.” 3. The Examiner stated my husband did not have any unique medical conditions that are associated with asbestos. However, he failed to mention my husband had a diagnosis of Interstitial Lung Disease, confirmed with both x-rays and a pathology report. The examiner did not mention the diagnosis, or provide any rationale based on sound medical principals for making a determination that my husband’s Interstitial Lung Disease was not a unique medical condition that is associated with asbestos. 4. The examiner did not examine my husband, and issued the opinion after a review of the records, yet issued the report as a “Respiratory Disease, Miscellaneous Exam,” which is somewhat misleading. This is especially important as the examiner stated my husband did not have any apparent residuals from the lung cancer without so much as talking to him. 5. The examiner stated my husband had no shortness of breath (and no apparent residuals from his lung cancer), though the pulmonary function tests done at the same VA facility on the same day noted that he had dyspnea on hills and stairs, frequent wheezing, a decreased FVC (73% predicted) and a decreased FEV1 (69% predicated). 6. The examiner did not order a DLCO test before issuing an opinion that my husband did not have any apparent residuals from his lung cancer (and resulting lobectomy) though the medical records show my husband’s DLCO was 51% in 2001. The C&P Service Clinician’s Guide 6.1 d) 4. states “. Unless an explanation for its omission is provided, the DLCO should be done.” Though my husband submitted a written request that the VA consider the examiner’s opinion inadequate, and articulated the reasons why, the Regional Office never responded to his request, never ordered another exam or opinion during my husband’s lifetime, and continued to rely on the opinion as a reason to deny the claim after his death. The evidence of record clearly shows: 1. It is more likely than not my husband was exposed to asbestos through his work as an electrician in the Air Force from 1970 – 1893. (This is substantiated through my husband’s own statements of the types of work he did, statements provided from veterans who worked with my husband, and the fact that my husband’s occupation is one that is frequently associated with asbestos exposure.) 2. That my husband was exposed to asbestos at a time when workers were not protected from the potential negative effects of that exposure. The evidence shows the Air Force did not have any safety programs (Hazmat training, respiratory protection, medical surveillance, etc.) for asbestos in place until the mid-1980’s. 3. That asbestos exposure was related with my husband’s cancer from the time of its diagnosis. His initial records with the surgeon, oncologist, and pulmonologist all note asbestos exposure or probable asbestos exposure as part of his relevant medical history. 4. My husband’s treating pulmonologist at XXX Air Force Base noted that asbestos exposure substantially increased his risk of getting lung cancer. Dr. XXX gave my husband a handwritten note that says: “Former Smoker Best is 1.4 Times Smoker 10 Asbestos 8 Together --- 80 ß--- Now” When he met with my husband in October 2001. Additionally, Dr. XXX re-iterated this risk when he noted in Chronological Record of Medical Care 11/5/2003 - (In Medical Records from xxxx Air Force Base): Hx of Lung Cancer. S/P resection at SLU September 00 3 cm & LLL-ectomy. Adeno CA. Smoker & Asbestos Exposure. Impr. – 1. Poss Adeno CA Stump Recurr 2. 1st CA 2000 3. Exposure Cigs & Asbestos ---> 80 x’s Risk 5. Dr. XXX’s notation is supported by sound medical reasoning, as there is a wealth of medical literature that reinforces that the combination of asbestos exposure and smoking greatly increases the risk of lung cancer. This information is reported by such agencies as The Environmental Protection Agency, The Agency for Toxic Substance and Disease Registry, The American Lung Association, The National Institute for Occupational Safety and Health, the American Cancer Society, and the Surgeon General. Despite the evidence in my husband’s C-file that my husband was exposed to asbestos, that he was exposed at a time when workers were not afforded any protection, that his treating physicians all noted asbestos exposure as relevant medical history in regard to his cancer, and that exposure to asbestos increased the risk of lung cancer (especially when combined with smoking) the Regional Office still relied on the VA examiner’s 2002 medical opinion that asbestos exposure did not contribute to my husband’s lung cancer as the examiner presumed he was not exposed to asbestos.

I have wondered about this with my husband's claim. Once upon a time veteran's were pushing for presumptive connection for Guam. My husband was in Guam 1975 - 1977. He was in Kunsan Korea 1982 - 1983. If either of these places / times would ever be considered presumptive - would my husband have to had claimed AO caused his cancer to be covered by the presumptions? I don't think so - but I was checking.

So, how is this: “The evidence of record shows the veteran died Feb 5, 2007, from adenocarcinoma of the lungs. A review of the treatment records show that he was not diagnosed with lung cancer during the Veteran’s 28-year career in the Air Force.” §3.303(d) “Postservice initial diagnosis of disease. States: “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.” “The veteran did have several instances of treatment in service for respiratory infections. Because both you and the veteran, prior to the veteran’s death alleged that the adenocarcinoma of the lungs had its onset during the veteran’s service, a request was submitted to the VA examiner, to determine if the veteran’s cancer had its initial onset while serving on active duty. There are two fully-articulated medical opinions in the record that specifically address the question of whether my husband’s cancer had its initial onset while serving on active duty. These opinions were written by Dr. __ and Dr. ___. Both physicians are Board Certified in the field of oncology. One physician is an Associate Clinical Professor at the University of Washington. One physician is an Assistant Clinical Professor at UCLA David Geffen School of Medicine. Both physicians opined that it is more likely than not that my husband’s cancer had its onset while he was serving on active duty. Their opinions are further supported by the handwritten note from my husband’s pulmonologist, Dr. ___ (which indicates that adenocarcinoma has a doubling time of six months and it takes 35 doublings to reach 3.25 cm.), the letter from my husband’s treating oncologist, Dr. ___ (which states that it is the accepted standard that my husband’s type of cancer has a mean doubling time of 180 days), and a wealth of treatise evidence my husband submitted during his lifetime. There is nothing in the VA examiner's opinion that conflicts with these two Independent Medical Opinions, or the other evidence submitted in support of the claim. The VA examiner did not offer an opinion in regard to whether my husband’s cancer had its initial onset while he was serving on active duty. He merely addressed whether the symptoms and treatments listed in my husband’s SMRs could be linked to his cancer. The VA medical examiner, on October 19, 2007, and upon full review of all in-service medical records and post-service medical records, states that the veteran’s treatment in service for respiratory problems is suggestive of acute manifestations of viral respiratory tract illnesses and that none of these respiratory problems in service can be linked to the development of adenocarcinoma of the lungs.” Though it does not appear that the VA examiner read the post-service medical records (He only stated he reviewed the SMRs related to treatment for respiratory problems), I do not disagree with the VA examiner’s opinion. We have never alleged that the signs and symptoms of viral respiratory illnesses listed in my husband’s SMRs were early manifestations of lung cancer. In his Independent Medical Opinion, Dr. XXX pointed out that it is well accepted that the majority of a tumor’s life span is “pre-clinical,” where it is too small to cause symptoms. He stated that the majority of cancers are not detected until the disease is advanced and / or spread to other parts of the body. There is nothing in the VA examiner's opinion that conflicts with this.

Okay... That is what I am coming up with line by line on the FIRST part of the SSOC. But as far as the VA examiner's opinion - I am not sure whether to even go into all that about what he did and did not say. I am not sure I want to open the door to invite him to clarify his opinion. It really looks pretty simple. They had their chance. The got to go first. They had their chance to at least take the time to write a decent medical opinion to deny my claim. But they didn't even bother to take the time. It was kind of like a slap in the face that they didn't even think my husband's death was worth the time to even take any trouble to deny. They thought they could just quickly whip up some half-ahem opinion - and be done with it. So - I am more of the opinion that I should just focus on the opinions I have that support my claim in this part - and point out that the VA examiner's opinion does not conflict with my IMOs or other evidence. I am afraid that if I put a lot of energy into actually refuting his opinion, that might open the door for them to ask him to clarify it, expand it, etc.

"My advise to you is to move your focus from BVA decisions and solely focus on how the VA worded their denials because this wording ,as well as copies of the results of any negative C & P exams, is what you have to overcome via an IMO." Okay – If I start taking it line by line – here is the first part: (It is a work in process at this moment...) “The evidence of record shows the veteran died Feb 5, 2007, from adenocarcinoma of the lungs. A review of the treatment records show that he was not diagnosed with lung cancer during the Veteran’s 28-year career in the Air Force.” §3.303(d) “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. “The veteran did have several instances of treatment in service for respiratory infections. Because both you and the veteran, prior to the veteran’s death alleged that the adenocarcinoma of the lungs had its onset during the veteran’s service, a request was submitted to the VA examiner, to determine if the veteran’s cancer had its initial onset while serving on active duty. The VA medical examiner, on October 19, 2007, and upon full review of all in-service medical records and post-service medical records, states that the veteran’s treatment in service for respiratory problems is suggestive of acute manifestations of viral respiratory tract illnesses and that none of these respiratory problems in service can be linked to the development of adenocarcinoma of the lungs.” (The medical opinion referred to states: “The veteran retired from service 9-30-1999. Therefore, his presumptive terminated 9-30-1999. I have reviewed the SMRs related to treatment for respiratory problems. The symptoms and treatments suggest manifestations of viral respiratory tract illnesses. None of the episodes can be reasonably linked to an early manifestation of lung cancer. After review of the c-file it is my opinion the veteran’s signs and symptoms listed in his SMRs are less likely than not early manifestations of the adenocarcinoma of the lung first diagnosed in September 2000.”) 1. The VA examiner did not address whether the cancer had its initial onset in service in his opinion. The VA examiner only addressed whether the symptoms and treatments for respiratory illnesses listed in my husband’s SMRs could reasonably be linked to his cancer. 2. There is no indication the VA examiner made a full review of the post-service medical records. He only states in his opinion that he “reviewed the SMRs related to treatment for respiratory problems.” He does not state that he reviewed the post-service medical records, and he does not make any reference to anything contained in those records in his report. 3. We have never alleged that any of the symptoms from respiratory illnesses my husband was treated for in service were linked to his lung cancer. 4. In fact, in 2006 we submitted evidence from treatises to show that lung cancer is often asymptomatic in its earlier stages, to rebut the allegation that my husband’s lung cancer could not have been present during service unless it caused noticeable symptoms. This included information and excerpts from U.S. National Cancer Institute's Surveillance, Epidemiology and End Results Program, Surveillance Epidemiology and End Results (SEER) - Web-based Training Modules, the U.S. Preventive Services Task Force. Guide to Clinical Preventive Services, published in the Columbia University Medical Center’s Guide to Clinical Preventive Services, Second Edition, Neoplastic Diseases Screening for Lung), an article ZD1839 (IressaTM) in Non-Small Cell Lung Cancer (The Oncologist, Vol. 7, Suppl 4, 9-15, August 15, 2002, an article A Systematic Review and Lessons Learned From Early Lung Cancer Detection Trials Using Low-Dose Computed Tomography of the Chest, (Cancer Control 10(4):306-314, 2003)the AMERICAN CANCER SOCIETY FACT SHEETS, Case Western Reserve University School of Medicine’s Electronic Curriculum - Pathology of Lung Cancer. This information was in my husband’s C-file at the time the VA examiner wrote the October 2007 opinion, but the VA examiner did not discuss it. Nor did he state that lung cancer has to produce noticeable symptoms in order to be present. He did not even state that my husband’s cancer did not start in service. He did not offer an opinion in regard to the onset of the cancer. He merely stated that the signs and symptoms listed in my husband’s SMRs suggest manifestations of viral respiratory tract illnesses, and that those illnesses cannot be reasonably linked to early manifestations of his lung cancer. 5. My husband specifically requested assistance from the VA in developing his claim in 2006. He submitted treatise evidence regarding cancer-related fatigue, and asked that the VA consider whether the fatigue that he reported the VA at the time of his 1998 separation from service (as well as other times between the years of 1998 and 2006) could reasonably be linked to his subsequent cancer diagnosis. This included information and excerpts from National Comprehensive Cancer Network Cancer Related Fatigue TOC Practice Guidelines in Oncology – v.1.2006, Cancer-related fatigue: evolving concepts in evaluation and treatment. (Cancer. 2003 Nov 1;98(9):1786-801, Stasi, et. al.) The National Cancer Institute Fatgiue PDQ - ICD-10 Criteria for Cancer-Related Fatigue, AMERICAN CANCER SOCIETY – CANCER REFERENCE INFORMATION, Recognizing & Preventing Cancer-Related Fatigue (CANCERWISE, M. D. Anderson Cancer Center, APRIL 2002), CANCER-RELATED FATIGUE (Online Journal of Issues in Nursing, September 23, 2003. This information was in my husband’s C-file at the time the VA examiner wrote the October 2007 opinion, but the VA examiner did not discuss it. Nor did he offer an opinion in respect to whether my husband’s reported fatigue could be related to his lung cancer.

Yep. I think we are all in agreement. I like the term "morally tilted." It sounds much more "politically correct" than saying "unethical snakes" or "purely evil intentions."