free_spirit_etc

Harleyman, I doubt the RO would do many Independent Exams or Opinions. It looks like they can, but it has to be approved way up the chain. And though it is aggravating that the VA examiners often times try to write opinions to deny claims, I don't think the law requires them to be independent. I don't think there is any actual legal conflict of interest. Moral and ethical conflicts, YES! - But not legal....

This doesn't say it has to be independent. 3.159©(4) Providing medical examinations or obtaining medical opinions. (i) In a claim for disability compensation, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. A medical examination or medical opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: (A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in ? 3.309, ? 3.313, ? 3.316, and ? 3.317 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and © Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability. (ii) Paragraph (4)(i)© could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service. (iii) Paragraph ©(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured.

Where is everyone reading that C&P exams are supposed to be "independent?"

I just looked - and Independent Exams / Opinions can also be requested by the RO - but the request has to be approved by the Compensation and Pension Service. So it looks like Independent Opinions are very different that C&P exams, or VA medical opinions. There doesn't seem to be any law that states the medical opinions obtained by the VA have to be Independent. In fact, they have to jump through additional hoops to prove that an Independent Opinion is necessary. § 5.92 Independent medical opinions. (a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion. (b) Requests. A request for an independent medical opinion in conjunction with a claim pending at the regional office level may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Veterans Service Center Manager of the office having jurisdiction over the claim, and those requests which in the judgment of the Veterans Service Center Manager merit consideration shall be referred to the Compensation and Pension Service for approval. © Approval. Approval shall be granted only upon a determination by the Compensation and Pension Service that the issue under consideration poses a medical problem of such obscurity or complexity, or has generated such controversy in the medical community at large, as to justify solicitation of an independent medical opinion. When approval has been granted, the Compensation and Pension Service shall obtain the opinion. A determination that an independent medical opinion is not warranted may be contested only as part of an appeal on the merits of the decision rendered on the primary issue by the agency of original jurisdiction. (d) Notification. The Compensation and Pension Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in § 1.577 of this chapter. (Authority: 5 U.S.C. 552a(f)(3); 38 U.S.C. 5109, 5701

I didn't think C&P exams were considered Independent Opinions. I thought Independent Medical Opinions were obtained more at the BVA level. Sometimes you will read BVA decisions where the Board will refer the case to an outside medical expert for an opinion. But this is only "required" when a case involves controversy or complexity. Actually, based on the way the law reads, it doesn't even look like it is required. It is just something that is available, and up to the judgement of the Secretary. 38 USC § 5109 - Independent medical opinions (a) When, in the judgment of the Secretary, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in a case being considered by the Department, the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department. (b) The Secretary shall make necessary arrangements with recognized medical schools, universities, or clinics to furnish such advisory medical opinions. Any such arrangement shall provide that the actual selection of the expert or experts to give the advisory opinion in an individual case shall be made by an appropriate official of such institution. © The Secretary shall furnish a claimant with notice that an advisory medical opinion has been requested under this section with respect to the claimant’s case and shall furnish the claimant with a copy of such opinion when it is received by the Secretary.

It looks like they do have to at least develop the evidence. http://www.va.gov/vetapp13/Files1/1300594.txt "The provisions of the VA Adjudication Procedure Manual, M21-1MR provide the specific steps necessary in verifying herbicide exposure on a factual basis in locations other than the Republic of Vietnam. Specifically, Part IV, subpart ii.2.C.10.o. states that if a veteran alleges exposure in other locations, the RO must ask the veteran for the approximate dates, location, and nature of the alleged exposure. See VA Manual M21-1MR, Part IV, subpart ii, 2.C.10.o. If such information is received, the RO must furnish the Veteran's detailed description of exposure to Compensation Service via e-mail at VAVBAWAS/CO/211/AGENTORANGE, and request a review of the DoD's inventory of herbicide operations to determine whether herbicides were used as alleged. Id. If the Compensation Service's review does not confirm that herbicides were used as alleged, the RO must refer the case to the U.S. Army and Joint Services Records Research Center ("JSRRC") coordinator to make a formal finding that sufficient information required to verify herbicides exposure does not exist. Id."

From what I have read (which isn't much) if you can argue that it is an unadjudicated claim still pending - that is the route to go, because the burden of proof isn't as stringent. Actually, I have just read several cases at the CVA where the veteran was arguing CUE, but the CVA said they didn't have jurisdiction because the claim was unadjudicated and still pending.

PR, Could you file this as a pending non-adjudicated claim instead of a CUE? If they didn't consider SC, would those claims still be pending?

For my DIC claim, in regard to asbestos exposure – the SSOC stated: “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.” It is ironic that they conceded asbestos exposure, but continued to rely on a medical opinion that had presumed my husband was not exposed to asbestos to deny the claim.

We submitted this letter to the VA during my husband's lifetime, challenging the adequacy of the VA examiner's opinion. ___________________________________________________________________________________________________ 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.

This is the examiner's opinion used to deny the earlier claim - and later my claim for DIC. VA asbestos opinion_2002_redact.pdf

Thanks harleyman! I still didn't get any confirmation that electricians were included in the medical surveillance, once the programs started - but I only asked for evidence if they were included on the INITIAL asbestos management program -- and the medical surveillance program was not started until later at that base. It is kind of frustrating that they started protecting the workers and doing medical surveillance in the mid to late 80s and beyond - and that a doctor who has a specialty in occupational medicine would opine that someone who worked in the field in the 1970's would not have been exposed to asbestos because they were not a part of a screening program that wasn't in existence at the time. But at least this evidence is enough to somewhat poke holes in the VA examiner's opinion.

"Focus is everything for many of us widows." Yes. I have to remember to keep most of my focus on the DIC claim. That is the important one. The other ones are more my wanting to stubbornly keep defending my husband's previous claims because I think he had valid claims and I think the VA hustled him.

"Free spirit , often a discharge physical never reflects any notes or nexus to a current disability, or a disability of any deceased veteran." Berta, As far as the discharge physical - I wasn't concerned about it so much for my DIC claim, or my husband's cancer claim. But I did try to get a copy before getting my IMOs. I wanted to either get a copy, or get the VA's written confirmation that there was not a copy in his file prior to getting an IMO about the cancer because I didn't want to get my IMOs and then have the VA suddenly have the discharge physical available that had not been considered by my IMO doctors. But my concern with the discharge physical for accrued benefits is that I notice that most claims include in their reasoning what the discharge physical, separation exam, etc state. Most of the time they will discuss whether the condition was noted or shown upon separation from the service. Several conditions that my husband claimed for at the time of his separation, (i.e. He signed his claim August 1998 and retired September 1998) were denied, but used the reasoning the SMRs didn't show this or that. But they remained mysteriously silent about the discharge physical. We had previously assumed the discharge physical was in his file. We didn't realize it wasn't until we tried to get a copy. But looking over his claims it is becoming more and more apparent that it was never in his file when they decided any of his claims, even the conditions he claimed when he was discharged. In retrospect, had we known what we know now (about both the missing discharge physical and about VA law) my husband probably could have easily argued that the conditions were noted at discharge (as they were reported to the VA at this time). But it is too late to make that argument now, as those decisions became final. BUT if I can ever get my hands on a copy of the discharge physical, then I can ask to have those claims reopened and re-adjudicated.

As far as the remand.... IF the judge would not grant SC based on the premise that my husband's cancer started in service, I was hoping to have enough information in the file to substantiate asbestos exposure. The VA examiner who opined in 2002 that my husband's cancer was not related to any asbestos exposure, determined my husband wasn't exposed to asbestos because he wasn't a part of any medical surveillance, etc. Since he presumed my husband wasn't exposed to asbestos, the BVA shouldn't be able to rely on that opinion (though the RO did). So I have tried to decide whether to go ahead and seek a medical opinion on the asbestos exposure issue, or whether to wait and see if that is even necessary. And one of the reasons I started this thread was to ask about OTHER conditions that my husband claimed through the years. If I find his discharge physical that shows some of the things they said his SMRs didn't show - then wondered about reopening those claims for accrued benefits. Or I also wondered about asking to have the cancer claim decided but to remand for further development of any other issues - and ask for the VA to try to obtain his discharge physical.

As far as substantiating my husband's cancer started in the service, I think I built a pretty strong case. I have 2 IMO from 2 oncology specialists who state pretty strongly that it is more likely than not that his cancer started quite some time before he retired. We also submitted quite a bit of treatise evidence during my husband's lifetime regarding the slow growth rate of his type of cancer, explaining doubling time, etc. etc, a letter from his treating oncologist stating the mean doubling rate of my husband's type of cancer is 180 days, and the handwritten note (but not in the treatment record) from my husband's pulmonologist that noted adenocarcinoma has a doubling time of 6 months, it takes 30 doublings to reach 1 cm, and 35 doublings to reach 3 cm. There really isn't any medical evidence in the file that refutes any of this that I know of. The VA doctor just addressed his symptoms in the SMRs and said those were not related to his cancer. He danced right past the question of when it started. And we backed the doubling time, growth rate information with treatise information from some pretty reputable sources. I guess the judge could still ask the VA examiner to give another opinion on the issue. But to me, the evidence in favor of the claim greatly outweighs the evidence against the claim -- as the only evidence against the claim is actually lack of evidence; not evidence against it, per se. His cancer wasn't diagnosed in service (lack of evidence - not negative evidence). His chest x-ray 4 years before his cancer was diagnosed did not show any cancer (lack of evidence - not negative evidence). The VA examiner said his symptoms from his respiratory problems in service weren't early manifestations of cancer. (Lack of evidence - not negative evidence). Due to the strength of the IMOs, the fact that they are backed by sound medical principals, and the fact there is no medical evidence in the record that actually refutes what the doctors said - it wouldn't seem like the judge would need another opinion, unless he was specifically seeking against against the claim. Here is some of the type of treatsies information we presented. ALREADY PRESENT DURING ACTIVE SERVICE Friberg S, Mattson S. On the growth rates of human malignant tumors: implications for medical decision making. Journal of Surgical Oncology. 1997;65:284–297. The article On the Growth Rates of Human Malignant Tumors: Implications for Medical Decision Making (Journal of Surgical Oncology, 1997;65:284–297,Friberg & Mattson) states: “Irrespective of their growth rates, most human tumors have been found to start from one single cell, to have a long subclinical period, to grow at constant rates for long periods of time, to start to metastasize often even before the primary is detected, and to have metastases that often grow at approximately the same rate as the primary tumor. The recognition of basic facts in tumor cell kinetics is essential in the evaluation of important present-day strategies in oncology. Among the facts emphasized in this review are: (1) Screening programs. Most tumors are several years old when detectable by present-day diagnostic methods. This makes the term ‘‘early detection’’ questionable. (2) Legal trials. The importance of so-called doctor’s delay is often discussed, but the prognostic value of ‘‘early’’ detection is overestimated. (3) Analyses of clinical trials. Such analysis may be differentiated depending on the growth rates of the type of tumor studied. Furthermore, uncritical analysis of survival data may be misleading if the TVDT is not taken into consideration. (4) Analyses of epidemiological data. If causes of malignant tumors in humans are searched for, the time of exposure must be extended far back in the subject’s history… As this review shows, most human malignant tumors are many years old when clinically detectable. Mulshine JL.Reducing Lung Cancer Risk*: Early Detection. Chest. 1999;116(suppl_3):493S-496S. In the article Reducing Lung Cancer Risk* : Early Detection (Chest – The Cardiopulmonary and Critical Care Journal for Pulmonologists, Cardiologists, Cardiothoractic Surgeons, Critical Care Physicians, and Related Specialists - 1999;116;493-496) the author states: The poor prognosis of lung cancer is related to the progression from a localized primary to a disseminated metastatic disease. With our current diagnostic technology, by the time lung cancer reaches a point at which it is clinically detectable, the disease is already in the late stages of its natural history and is only a couple of doublings away from reaching a lethal tumor burden. Lung cancer tumor burden typically exceeds 109 cells at the time of diagnosis (a 1-cm3 volume). Thus, an important goal for lung cancer management is to develop improved techniques of identifying the premetastatic phases of lung cancer when the disease can be more successfully treated. http://www.moffitt.org/research--clinical-trials/cancer-control-journal/screening Screening, Early Detection, and Early Intervention Strategies for Lung Cancer (Cancer Control: Journal of the Moffitt Cancer Center, Vol 2, No. 6, November/December 1995) reports: “Radiographically detectable lung cancer is hardly early disease. To be seen on routine chest radiograph, in the favorable circumstance of a peripheral nodule that does not overlie shadows of rib or mediastinal structures, a lesion has to be approximately 1 cm in diameter. Such a mass will typically contain 10 to the 9th tumor cells, representing about 30 doublings under an ideal condition of no cell loss. Such conditions never occur in human tumors; a comparison of actual and potential doubling times suggests that cell loss factors in the range of 80% to 90% are common. [3] At this point, the "early" tumor has undergone most of its life span. This long preclinical history for even the smallest radiographically detectable tumors gives ample opportunity for the mutational appearance and clonal selection of phenotypes capable of invasion, metastasis, and drug resistance.” DOUBLING TIME – GENERAL Lillington GA. Management of solitary pulmonary nodules. How to decide when resection is required. Postgrad Med. 1997;101:145–150. doi: 10.3810/pgm.1997.03.177. The article Management of solitary pulmonary nodules: How to decide when resection is required (POSTGRADUATE MEDICINE, VOL 101 / NO 3 / MARCH 1997, Glen A. Lillington, MD) reports, “Malignant nodules usually grow at a constant exponential rate, which can be expressed as the tumor's doubling time (i.e., the interval required for it to double in size). An increase of 28% in nodule diameter indicates doubling. In malignant lesions, the doubling time is between 25 and 450 days in most cases, with a median of 120 days. Reich JM. Improved survival and higher mortality: the conundrum of lung cancer screening. Chest. 2002;122:329–337. The article Improved Survival and Higher Mortality*:The Conundrum of Lung Cancer Screening (Chest. 2002;122:329-337. American College of Chest Physicians) reports, “Thirty doublings, three quarters of the life history of the tumor, are required to achieve a 1-cm diameter tumor, the threshold for radiographic detection. Forty doublings would produce a 10-cm diameter tumor. Twenty-five doublings are required to achieve a 3-mm diameter tumor, the threshold for detection by LDCT scanning. As a convenient rule of thumb, three volume doublings (an eightfold change) are required to double the diameter of a spherical tumor.” Winer-Muram HT, Jennings SG, Tarver RD, et al. Volumetric growth rate of stage I lung cancer prior to treatment: serial CT scanning. Radiology. 2002;223(3):798–805. The article Volumetric Growth Rate of Stage I Lung Cancer prior to Treatment: Serial CT Scanning (Radiology 2002;223:798-805 Winer-Muram, et al., from the Department of Radiology, Indiana University School of Medicine, Indianapolis; and the Department of Radiology, Richard L. Roudebush, Veterans Administration Medical Center, Indianapolis, IN) reports: “Many investigators have estimated the growth rates of various types of lung cancer by using chest radiography. In one series of 67 patients, DT ranged from 30 to 490 days; in another review of 52 patients, DT varied from 1 to 14 months. Radiographically, it has been estimated that a tumor requires 27 DTs to reach a diameter of 5 mm and 35 DTs to reach 3 cm. At 40 DTs, the tumor is 10 cm in diameter; however, most patients die before this occurs. Tumor DT has been shown to be an independent predictor of mortality.” A table from Chest X-Ray Your Thoracic Imaging Resource (Published June 2000, Revised July 2004, Jud W. Gurney, M.D. FACR, Department of Radiology, Nebraska Medical Center) shows the medically accepted standards of doubling times required for a tumor to reach a designated size. Natural History of Growth Doublings Cells Diameter 0 1 10 um microscopic 20 1 x 106 1 mm microscopic 30 1 x 109 1 cm Detectable CXR 35 1 x 1010.5 3 cm Average Diagnosis 40 1 x 1012 10 cm Death Equation for Doubling time = Ti x log2 / 3 x log(Di/Do) or (ln2 x Ti)/(ln(Vi/Vo)  Ti = interval time  Di = initial diameter  Do = final diameter  Vi = initial volume  Vo = final volume (Atch 28) ADENOCARCINOMA - DOUBLING TIME 180 DAYS McWilliams A, MacAulay C, Gazdar AF, Lam S. Innovative molecular and imaging approaches for the detection of lung cancer and its precursor lesions. Oncogene.2002;21:6949–6959. The article Innovative molecular and imaging approaches for the detection of lung cancer and its precursor lesions (Oncogene 7 October 2002, Volume 21, Number 45, Pages 6949-6959 Annette McWilliams, et. al.) reports: “Tumour volume doubling time (VDT) in lung cancer is known to be an independent prognostic factor Evaluation of VDT has shown wide variation between different cell types with the shortest times seen, as expected, in small cell lung cancers and the longest in adenocarcinoma.” From the National Cancer Institute SEERS site: (http://www.seer.cancer.gov/) The National Cancer Institute's Surveillance, Epidemiology and End Results (SEER) Program Web Based Training Modules (http://www.training.seer.cancer.gov/) report: “All three subtypes of NSCLC develop differently. Treatments are often based on the location of the particular cancer and its rate of spread. Most adenocarcinomas begin in the middle of the lungs; but about 25 percent develop along the lung periphery. These tumors are small, and the cells double about every 180 days also. They are likely to metastasize early. The form known as bronchoalveolar adenocarcinoma develops in the alveoli and may spread through the airways to other parts of the lung” Reich J. Stage Ia Lung Cancer Size And Survival. Chest. 2004;126(1):310-311. The article Stage IA Lung Cancer Size and Survival (Chest. 2004;126:310-311. American College of Chest Physicians) reports, “Three tumor volume doublings are required to double the diameter of a spherical tumor. The cost-effectiveness article employed a TVDT of 180 days, the doubling time of the "average adenocarcinoma," most of which grow faster than stage IA adenocarcinomas. The improvement in survival produced by LDCT length-biased sampling and overdiagnosis are not quantifiable. Conflating the (smaller) LDCT-ascertained stage IA LCs (with their 3-year lead-time bias) with cases ascertained by other means undoubtedly contributed substantially to the difference in survival in patients with LCs 2 cm vs > 2 cm.” Yankelevitz DF, Gupta R, Zhao B, Henschke CI. Small pulmonary nodules: evaluation with repeat CT—preliminary experience. Radiology. 1999;212:561–6. The article Small Pulmonary Nodules: Evaluation with Repeat CT-Preliminary Experience (Radiology. 1999;212:561-566.) states, “To estimate tumor growth, we calculated the expected growth of nodules with different diameters by using an exponential growth model. Assuming the nodules were spherical and initially of diameters of 5, 10, 15, and 20 mm, we calculated the new diameters within 1–4 weeks by using doubling times of 30, 90, 120, 150, and 180 days. These doubling times roughly correspond to those of a very aggressive small cell carcinoma (30-day doubling time), a squamous cell carcinoma (90-day doubling time), a large cell carcinoma (120-day doubling time), and an aggressive and average adenocarcinoma (150- and 180-day doubling time, respectively) EDUCATION EXHIBIT - Invited Commentary • Authors' Response (RadioGraphics 2004;24:1632-1636, Cris A. Meyer, MD & Ralph T. Shipley, MD Department of Radiology, The University Hospital, Cincinnati, Ohio) states, “At histologic analysis, pure ground-glass attenuation represents atypical adenomatous hyperplasia or BAC in situ, not the typical invasive adenocarcinoma detected in smokers. Furthermore, doubling times for pure ground-glass attenuation lesions are reported to be 880 days or more, in contrast to typical adenocarcinomas, whose doubling times average 180 days. Wisnivesky JP, Mushlin AI, Sicherman N, Henschke C. The cost-effectiveness of low-dose CT screening for lung cancer: preliminary results of baseline screening. Chest 2003;124:614–621. The Cost-Effectiveness of Low-Dose CT Screening for Lung Cancer* Preliminary Results of Baseline Screening (Chest. American College of Chest Physicians 2003;124:614-621, Wisnivesky, et. al) reports: “For the purpose of the analysis, life expectancy was estimated as the stage-specific expected survival time following diagnosis. However, there is usually an interval of time between the diagnosis of lung cancer by screening CT scan and when it would have been detected due to the development of symptoms (i.e., the lead time). Thus, to compensate for this difference, lead time was incorporated into the model as a period of time added to the life expectancy of the unscreened individuals. To estimate the lead time introduced by CT scan screening for stage I tumors, we calculated, using doubling times, how long it would take for a malignant nodule to grow from the usual size of CT scan-detected stage I cancers to the usual size of symptom-detected stage I malignancies. We estimated, based on ELCAP and SEER data, a median size of 10 mm and 20 mm, respectively, for CT scan screen-detected tumors and symptom-detected stage I tumors. Thus, using the exponential growth model and a doubling time of 180 days (roughly corresponding to the doubling time for an average adenocarcinoma), we estimated that it would take three doubling times, or approximately 1.5 years, for a screen-detected malignancy to grow to the average size of a stage I symptom-detected tumor. From the Electronic Curriculum of Salisbury University: Cancer of the Lung Robert L. Joyner, Jr., PhD, RRT Associate Professor and Chair Department of Health Sciences Director, Respiratory Therapy Program Salisbury University Non-Small-Cell Lung Cancer  Arises from mucus glands of tracheobronchial tree.  Glandular configuration and mucus production distinguishes adenocarcinoma from other types of bronchogenic carcinomas.  Most common lung cancer in women and in people who do not smoke.  Usually found in the peripheral regions of lung parenchyma.  Moderate growth rate (doubling time is about 180 days)  Metastatic tendency is early.  Secondary cavity formation and pleural effusions are common (Available at: http://www.salisbury.edu/healthsci/resp/classes/rljoyner/ spring/RESP304/15LngCx.htm) From: Stony Brook University – Health Science Center - Suffolk County New York: CPR: Pulmonary 26 November 20, 1998 9:00-10:00 Lecturer: Dr. Sachs CLINICAL FEATURES OF LUNG CANCER Adenocarcinoma (30% of lung cancers) · typical scar carcinoma · tends to arise in the periphery · also grows in the airways, but starts in more peripheral airways · tends to metastasize earlier than squamous cell in its course · doubling time is about 180 days · has a bronchoalveolar cell variant, which looks almost like normal alveolar tissue and is sometimes a very difficult diagnosis to make radiographically, it looks like a chronic pneumonia because it looks like an infiltrate except that it doesn’t resolve with antibiotic therapy (this is often how people wind up getting diagnosed) (Available at: http://ibm-bladeserver.informatics.sunysb.edu/som/students/2001/ noteservice/l26.doc) TIME OF INCURRENCE BASED ON DOUBLING TIMES Wisnivesky JP, Yankelevitz D, Henschke CI. Stage of lung cancer in relation to its size. Part 1. Insights. Chest. 2005;127:1132–1135. doi: 10.1378/chest.127.4.1136. Stage of Lung Cancer in Relation to Its Size* (Chest. American College of Chest Physicians, 2005;127:1132-1135.) Yankelevitz, Wisnivesky, MD, & Henschke,)PhD, MD, FCCP * From the Department of Radiology (Drs. Yankelvitz and Henschke) explains: “As the size threshold for detection is significantly smaller for CT than CXR, it is far more likely that a cancer not detected in the CXR study arm grows beyond the 3 cm threshold during the 1-year interval between screenings, relative to a cancer not detected in the CT arm. As an example, let us consider an adenocarcinoma with a volume doubling time of 180 days. It would take a 2-cm cancer < 1 year (315 days) to grow to 3 cm, while for a 0.5-cm cancer it would take > 4 years (1,400 days) to grow to 3 cm. Thus, CT screening would still be beneficial, as a much higher percentage of cancers would be detected by repeat screening before it crossed the 3-cm threshold, after which stage progression occurs even by the admission of the P/G group.” Black WC .Unexpected observations on tumor size and survival in stage IA non-small cell lung cancer. Chest. 2000 Jun; 117(6):1532-4. In the Editorial Unexpected Observations on Tumor Size and Survival in Stage IA Non-small-Cell Lung Cancer (CHEST, 117(6):1532-1534, 2000, American College of Chest Physicians, William C. Black, MD , Dartmouth Medical School Lebanon, NH.) explains, “Let me begin by offering three reasons why there should be a causal inverse relationship between tumor size and survival. First, considering any individual case, if a lung cancer is diagnosed when it is small instead of when it is large, then survival, which is measured from the time of diagnosis, should be increased by the lead time from earlier diagnosis. 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.”

My other IMO IMO_onset_1_redact.pdf curriculum vitae-IM_1_redact.pdf

One of my IMOs and CV IMO_onset_ 2_redact.pdf curriculum vitae-IM_2_redact.pdf

The VA examiner's opinion when he was supposedly addressing whether my husband's cancer started in service. (Notice how he just scribbled a quick denial kind of note - like my husband's death could be dismissed that easily... ) VA examiner opinion_ onset.pdf

This was my initial appeal - attached to the Form 9 I am appealing the decision denying accrued benefits and DIC on the record of xxx I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR. Some of the specific errors of facts / law on the Supplemental Statement of Case with which I disagree include, but are not limited to: Though the VA acknowledged our assertion that my husband’s cancer had its onset in service, and contend they asked the VA examiner to determine if my husband’s cancer had its initial onset in service, the October 2007 VA examiner’s report did not address this issue. Though the examiner opined that it was more likely than not the respiratory problems that were treated in service were not early manifestations of lung cancer, the examiner did not provide any opinion regarding the probable onset time-frame of the cancer. The examiner also did not indicate that he reviewed any of my husband’s post service medical records, though my husband’s lung cancer was diagnosed 2 years post service. He also did not provide any rationale for his decision, based on sound medical principles. Nor did he, or the VA, provide any supplemental information to support the medical opinion. VA law on post service diagnosis of illness does not indicate that an illness has to be diagnosed or treated in service in order to be service connected. The file contains evidence that it was more likely than not that my husband’s cancer had its onset before his October 1998 retirement from service. This includes a 10/3/2001 handwritten note from Dr. xxxx, indicating the relative doubling times of my husband’s type of lung cancer, and how many doublings it would take to reach the size my husband’s tumor was at diagnosis, (submitted with initial claim), a notation in the Written Notes in Chronological Record of Medical Care 10/3/2001, in which Dr. xxx notes that the cancer was non-small cell cancer (and not small cell as had previously been reported in error) and that the important differences had been explained to the patient; a statement from treating oncologist, Dr. xxxxx, indicating the mean doubling time of pulmonary adenocarcinoma is 180 days; and a wealth of medical journal article excerpts, and medical treatise information from reputable sources to support the contention that the statements from these physicians are based in sound medical principles. In determining whether it was more likely than not that the my husband’s exposure to asbestos during the 13 years he worked as an electrician in the Air Force contributed to the eventual development of my husband’s cancer, the VA relied on the March 19, 2002 examiner’s report. Our disagreement with this report was set forth in our letter requesting the VA consider the examination to be inadequate. Among other things, the examiner determined that my husband’s cancer was caused by smoking, without providing any rationale as to whether it was more likely than not that asbestos exposure could also have been a contributing factor - if my husband had been exposed to asbestos. Due to the combined affect of smoking and asbestos exposure being well documented throughout medical literature, we would expect the examiner to offer some sound medical reasoning to justify totally ruling out the effect of asbestos exposure to make a determination that my husband’s cancer was caused by smoking alone. The examiner, in this case, opined that asbestos exposure did not contribute to the development of my husband’s lung cancer, as he opined there was no evidence that my husband was routinely exposed to asbestos. The examiner gave no rationale for disregarding my husband’s own statements of work he did that exposed him to asbestos, and the medical records that noted probable asbestos exposure, including: Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. xxxx 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 – xxxx, MD – Oncologist (In Medical Records from xxxx 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 9/29/2000 also notes under Respiratory system: Asbestos exposure Lung CA Cough The examiner relied on the fact that there was no evidence that my husband was part of any medical surveillance or occupational screening programs to opine that there was no evidence my husband was routinely exposed to asbestos. However, evidence of record shows asbestos safety programs were not even in existence in the Air Force until after the time my husband worked as an electrician. The lack of medical surveillance would point to the fact that my husband was exposed to asbestos at a time that no safety measures were in place more than that he was not exposed to asbestos. The examiner did not indicate, based on sound medical principles, what type of exposure would be required to be considered “routine,” or whether exposure to asbestos had to be routine to lead to the development of lung cancer. The examiner noted that my husband’s medical records did not indicate that he had any unique medical conditions that are associated with asbestos. However, he failed to indicate, based on sound medical principles, why he disregarded my husband’s Interstitial Lung Disease that was indicated in x-rays taken at Georgetown Medical Center and St. Louis University Hospital in 2000, and confirmed with a diagnosis in a pathology report at St. Louis University Hospital in September 2000. The file contains evidence that asbestos exposure most likely played some role in the development of my husband’s lungs cancer, which includes, but is not limited to: Written Notes in Chronological Record of Medical Care 11/5/2003 - Dr.xxxx - (In Medical Records fromxxxx 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 Dr. xxx notation in the medical record of the increased risk, supports the handwritten note he gave to my husband on 10/3/2001, in which he indicated the relative risk for cancer from smoking alone, asbestos exposure alone, and a combination of the two. This relative risk is also supported by medical information from reputable sources within the claim file, showing this information is based on sound medical principles. The Supplemental Statement of Case notes that the chest x-ray taken in 1996, slightly over two years prior to my husband’s retirement from the Air Force, did not show evidence of lung cancer. However, it did not offer any sound medical reasoning to indicate that my husband’s lung cancer should have been detectable by x-ray at this time in order to be service connected. There is no disagreement that my husband had a 3.1 cm tumor removed approximately 2 years after retiring from a 28-year career in the Air Force. Evidence of record indicates that in order to be detectable by x-ray, a tumor has already been in place for quite some time. There is also ample evidence of record that pulmonary adenocarcinoma is considered a slow growing cancer. Additionally, there is no indication in the Supplemental Statement of Case that my husband’s discharge physical has disappeared from his file. There are notations in my husband’s Chronological Record of Medical Care that a discharge physical was performed, and some of my husband’s earlier claims refer to his discharge physical. However, we have attempted to obtain a copy of this physical from the VA repeatedly, and have been informed that it is no longer part of his record. As my husband is claiming for service connection for a disease diagnosed post-service, I am concerned that his discharge physical has disappeared from his file. A significant amount of evidence we submitted is not listed in the evidence section, nor discussed in the reasons and bases for denial. In regard to entitlement for accrued benefits, the Supplemental Statement of Case indicates my husband had an active claim for adenocarcinoma pending at his death, it does not indicate that any other claims, reasonably raised by the evidence of record, would also be pending. These claims include, but are not limited to, other respiratory illnesses and increased ratings for conditions for which my husband was already service connected at the time of his death. These conditions would include, but are not limited to, chronic bronchitis, chronic sinusitis, cervical strain, and increased rating for arthritis of the joints. I thank the VA and the BVA for considering this claim and appeals. I respectfully request additional time to provide additional factual / legal arguments and additional evidence in support of my claim. Respectfully submitted,

This was the SSOC SSOC lung cancer.pdf

"While BVA decisions have taught me plenty over the years, they are always specific to the claimant and not to any other vet or widow. Also I learned from my own BVA decision that the decision never mentioned much of the vast amount of evidence I had. The BVA used the IMOs from Dr. Bash as the prime rationale for their award and I was disappointed that other evidence I had,, which might have helped someone with a similar claim, did not appear much in the BVA decision at all.So we read these BVA decisions without benefit of the full story, mainly when BVA awards the claim. They keep the award decision short and sweet." This is so VERY True!

The Chronological Record of Care has a notation on June 18, 1998 that my husband had a physical and Form 2697 completed - extensive.

"yes the lawyer only makes statements of fact and they know how to document your statements so they do not get twisted by the regional office," I wonder if part of it is how they document the statements, and part of it is that the RO is less likely to twist your statements if a lawyer is involved.

Good luck!