free_spirit_etc

The VA examiner was the same one that wrote the opinion in my husband's claim. He is a DO and has a Master's of Public Health. So I guess he specializes in writing opinions to deny cancer claims in this area.

This is an interesting claim. And it has already been up through the Federal Court and back. What is interesting is that even after all that - it is still being remanded to give the VA one more chance to write a medical opinion that is sufficient to deny the claim, and give adequate reasons and bases for doing so. Some things I found interesting is that the Court did not consider the VA examiner stating that studies were not conclusive to be probative evidence. So it is part of that lack of evidence is not negative evidence argument. I don't know how many claims I have read where the BVA relied on the opinion of the examiner saying that studies didn't show that x caused y, or that studies were inconclusive. I do like the part about using treatises evidence as enough evidence to require an exam / opinion. They also said the VA opinion that relied on a 2004 study couldn't be used to defeat the accrued benefits claim, since the veteran died prior to 2004. But they also said the dic claim and the accrued benefits claim were inextricably intertwined and that one could not be considered without considering the other. http://www.va.gov/vetapp13/Files1/1308315.txt Citation Nr: 1308315 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 99-23 972A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic myelogenous leukemia, to include as due to exposure to Agent Orange, for purposes of accrued benefits. 2. Entitlement to service connection for the cause of the Veteran's death. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and the Veteran ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to November 1971, including two tours in Vietnam. He died in April 1999. The appellant is the Veteran's surviving spouse. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 1999 rating decision of the Regional Office (RO) in St. Louis, Missouri, that denied the appellant's claims for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits, and for service connection for the cause of the Veteran's death. These matters were previously before the Board in March 2003, at which time they were remanded to ensure due process. In a July 2003 decision, the Board denied service connection for chronic myelogenous leukemia, to include as due to exposure to Agent Orange, for purposes of accrued benefits, and denied service connection for the cause of the Veteran's death. The appellant appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In a July 2007 decision, the Court vacated and remanded that part of the Board's July 2003 decision that denied service connection for chronic myelogenous leukemia, to include chronic myelogenous leukemia based on Agent Orange exposure, for the purpose of Dependency and Indemnity Compensation (DIC) benefits. The Court found that the Board's July 2003 decision failed to provide an adequate statement of reasons and bases discounting a May 1995 favorable medical opinion. The Court affirmed the denial of service connection for chronic myelogenous leukemia, for purposes of accrued benefits. The Court noted that at oral argument, the appellant's attorney asserted that the appellant had not abandoned the issue, but conceded that the distinction between the accrued benefits issue and the DIC claim were not adequately covered in the briefs, and that her arguments to each were not clearly delineated. The Court asserted that the appellant had failed to raise any specific argument as to how VA's notice to her was defective, and therefore the Court stated it would not address the matter. The appellant appealed the Court's July 2007 decision to United States Court of Appeals for the Federal Circuit (Federal Circuit). In a May 2009 decision, the Federal Circuit reversed and remanded the Court's July 2007 decision. The Federal Circuit found that there was no legal basis to distinguish the two claims of service connection. The Federal Circuit held that the failure of the Board's July 2003 decision to provide reasons and bases for discounting the 1995 medical opinion affected the accrued benefits claim in exactly the same way it affected the DIC benefits claim. The Federal Circuit reversed and remanded to the Court with instructions to remand to the Board on this issue, so that the DIC and accrued benefits claims could be considered together. When the case was most recently before the Board in July 2010, the Board denied the appellant's claims for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits, and for service connection for the cause of the Veteran's death. The appellant appealed the July 2010 denials of her claims to the Court and in an April 2012 Memorandum Decision, the Court vacated the July 2010 decision and remanded the matters to the Board for further development and readjudication consistent with the Memorandum Decision. The Board also notes that in a February 2012 rating decision, the appellant's claims were readjudicated pursuant to Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989). The February 2012 rating decision denied the appellant's claims. Specifically, in this regard, in May 1989, the United States District Court for the Northern District of California voided all denials of Agent Orange claims based on the regulations that became effective on September 25, 1985. Nehmer v. United States Veterans' Administration, 712 F. Supp. 1404, 1409 (N.D. Cal. 1989) (Nehmer I). The district court later clarified its ruling, holding that the covered claims were those in which the disease or cause of death was later found to be service connected under valid VA regulations. Nehmer v. United States Veterans' Administration, 32 F. Supp. 2d 1175, 1183 (N.D. Cal. 1999) (Nehmer II). In May 1991, the United States government and the plaintiffs in the Nehmer litigation entered into a stipulation according to which VA would readjudicate claims the denials of which were voided by Nehmer I. Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH) (N.D. Cal. May 17, 1991) (Nehmer Stipulation). The effective date of any resulting award of benefits would be based on the filing date of the original claim, for claims originally filed before May 3, 1989 (Stipulation 1), or on the later of the filing date of the claim or the date of disability or death of the Veteran, for claims filed after May 3, 1989 (Stipulation 2). See Williams v. Principi, 310 F.3d 1374, 1375-76 (Fed. Cir. 2002). The Nehmer stipulations were later incorporated into a final regulation that became effective on September 24, 2003. 68 Fed. Reg. 50,966 (Aug. 25, 2003) (codified at 38 C.F.R. § 3.816). Pursuant to 38 C.F.R. § 3.816, a Nehmer class member is defined to include a surviving spouse, child, or parent of a deceased Vietnam Veteran who died from a covered herbicide disease. Chronic lymphocytic leukemia (CLL) was added to the list of covered herbicide diseases in October 2003, and an April 2006 decision of the United States Court for the Northern District of California held that the provisions of the Nehmer class action suit also applied to disability or death claims based on CLL, thus entitling those who met the eligibility requirements to claim retroactive benefits. See 68 Fed. Reg. 59540-59542 (October 16, 2003); see also Nehmer v. United States Veterans' Administration, No. CV-86-6160 (TEH). The appellant was mailed notice of the February 2012 rating decision in an April 2012 letter. She was informed of her right to appeal the decision within one year of date of the April 2012 letter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Pursuant to the April 2012 Memorandum Decision, the Court found that the Board did not provide adequate reasons and bases with respect to its denial of service connection for the cause of the Veteran's death because it did not adequately explain why it favored Dr. McCall's negative nexus opinion and addendum over Dr. Luker's positive nexus opinion, and failed to properly consider treatise evidence favorable to the appellant's claim. Specifically, the Court found that the Board did not explain what findings, if any, Dr. Luker overlooked or how his failure to refer to those findings demonstrated that he was not reasonably informed of the Veteran's relevant medical history. Moreover, the Board was found to have inappropriately accorded more probative value to Dr. McCall's opinion and addendum because they were based upon the National Academy of Sciences Study. The Court noted that the Board had previously stated that in 2004 the National Academy of Sciences found that there was inadequate or insufficient evidence to determine whether an association exists between herbicide exposure and leukemia (other than chronic lymphocytic leukemia), meaning that the available studies were of insufficient quality, consistency, or statistical power to permit a conclusion one way or another regarding an association between leukemia (other than chronic lymphocytic leukemia) and herbicide exposure. In doing so, the Board recognized that the National Academy of Sciences' findings were at best inconclusive regarding such a relationship between herbicide exposure and chronic myelogenous leukemia, not that they demonstrated that there was no association between the two. As such, the Court found that the findings of the National Academy of Sciences would not tend to contribute probative value to Dr. McCall's opinion and addendum nor would those findings be able to detract from Dr. Luker's opinion because such findings do not tend to prove that the Veteran's chronic myelogenous leukemia was more or less likely caused by Agent Orange exposure. In sum, the Court found that the Board's reasons and bases were inadequate to the extent that the Board relied on the findings of the National Academy of Sciences in weighing the opposing medical opinions as to the issue of direct service connection. The Court also concluded that the Board did not adequately consider the treatise evidence of record. The Court agreed with the Board insofar as the Board found that such treatise evidence does not demonstrate a causal relationship between the Veteran's particular service and his claimed condition, but the Court also found that the Board failed to consider the treatise evidence for the purpose of evaluating the probity of other evidence of record. Notably, the Court found incongruity in the Board's reliance on the generalized findings contained in the inconclusive National Academy of Sciences study while simultaneously summarily rejecting favorable treatise evidence for being "general in nature." The Court further found that the Board erred in determining that VA was not required to obtain a medical opinion as to whether there was a relationship between the Veteran's exposure to benzene in Agent Orange and his chronic myelogenous leukemia. The Court found that the treatise evidence of record was sufficient to show that the Veteran's chronic myelogenous leukemia "may be associated with" his exposure to AO in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (holding that VA has a duty to obtain a medical examination when the record contains competent evidence of a current disability or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service; an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability; and insufficient evidence to decide the case). The Court also found that the Board's determination that the final element (insufficient evidence to decide the case) was not met was clearly erroneous. The Board determined that there was sufficient evidence to decide the case, as all necessary development had been accomplished, including numerous medical opinions in 2000 addressing the etiology of the Veteran's chronic myelogenous leukemia. However, the Court found this finding to be clearly erroneous because none of those medical opinions considered the possibility that exposure to benzene could be associated with the development of chronic myelogenous leukemia, as the appellant did not present that argument and the accompanying treatise evidence to VA until April 2010, many years after the medical opinions cited by the Board were rendered. Consequently, the Court found that there was insufficient competent medical evidence on file for the Board to make a decision on the appellant's claim for service connection for the cause of the Veteran's death. As such, the Court directed the Board to obtain a medical opinion on remand. Moreover, in written argument received by the Board in January 2013, the Veteran's representative specifically argued that the appellant's claim for service connection for the cause of the Veteran's death should be remanded in order to obtain a VA medical opinion. Therefore, the Board finds that remand is required in order to obtain a VA medical opinion. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, the Court found that the Board also provided an inadequate statement of reasons or bases for its determination that the appellant was not entitled to accrued benefits. Specifically, the Court found that the Board "applied the same flawed analysis in evaluating the probity of Dr. Luker's opinion" as it did with respect to the cause of death claim. The Court also concluded that the Board erred to the extent that it relied on findings of the National Academy of Sciences from 2004, four years after the Veteran's death, noting that 38 U.S.C.A. § 5121(a) requires that claims for accrued benefits must be decided based upon evidence in the file at the date of death. The Court indicated that the appellant's claim for accrued benefits is inextricably intertwined with her claim for dependency and indemnity compensation benefits. In this regard, the Board notes that adjudication of accrued benefits claims are to be based on evidence in VA's possession at the time of death even if the evidence was not physically located in the claims folder at the time of death. See 38 U.S.C.A. § 5121(a) (West Supp. 2011); 38 C.F.R. § 3.1000 (d)(4) (2012). However, additional evidence may be developed in the course of a claim for DIC benefits. As such, and as noted above, the appellant's claim for service connection for chronic myelogenous leukemia, to include as due to Agent Orange exposure, for purposes of accrued benefits is inextricably intertwined with the claim of entitlement to service connection for the cause of the Veteran's death. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Therefore, the claim for service connection for chronic myelogenous leukemia for purposes of accrued benefits must be remanded as well. The Board additionally observes that there has not been compliance with VA's duties to notify under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002), or the implementing regulations codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), or the expansion of such duties in Hupp v. Nicholson, 21 Vet. App. 342 (2007). See also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the appellant was provided with a VCAA notice letter in April 2003. Although not mentioned in the April 2012 Memorandum decision, the Board notes that the April 2003 letter did not specifically notify the Veteran of the evidence required to establish entitlement to dependency and indemnity compensation benefits based on the cause of the Veteran's death. The letter also failed to advise the appellant as to whether service connection had been established for any disability, in compliance with Hupp, and did not discuss the law pertaining to the assignment of disability ratings and effective dates in compliance with Dingess/Hartman. Therefore, the Board finds that corrective notice may be provided while the case is being remanded. Accordingly, the case is REMANDED for the following action: 1. Send the appellant a corrective VCAA notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that advises her of the information and evidence required to support her claim for entitlement to service connection for the cause of the Veteran's death, whether service connection has been established for any disability during the Veteran's lifetime, or for the purpose of accrued benefits, consistent with Hupp, as well as how disability ratings and effective dates are assigned as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. Arrange for an appropriate VA examiner to review the Veteran's claims folder in order to provide a medical opinion. A copy of this entire remand must also be provided for the examiner to review. The examiner is advised that the Veteran served in Vietnam and is presumed to have been exposed to Agent Orange. He was diagnosed with leukemia at a VA facility in January 1993. The Veteran died in April 1999. His certificate of death lists the cause of death as intracranial hemorrhage which was noted to be due to or as a consequence of chronic myelogenous leukemia. The Veteran had no service-connected disability at the time of his death. The appellant has maintained that the Veteran's exposure to herbicides, while serving in Vietnam, was the cause of the Veteran's leukemia. The Board notes that chronic myelogenous leukemia is not among the forms of leukemia that are for consideration for presumptive service connection. Thus, the appellant must show a direct connection between the Veteran's military service and his chronic myelogenous leukemia. The examiner is requested to provide an opinion as to whether it is at least as likely as not that the Veteran's leukemia was related to the Veteran's military service, to include exposure to herbicides, including dioxin and benzene. The examiner must address the numerous medical articles and treatises that show Agent Orange contains dioxin, dioxin contains benzene substructures called benzene rings, there is sufficient evidence of an association between benzene and adult leukemia, and evidence that supports a possible association of occupational exposure to benzene and the risk of chronic myelogenous leukemia. The examiner must also address the May 1995 letter from VA physician Dr. Luker, which indicates that there is a relationship between the exposure to Agent Orange and the diagnosis of chronic myelogenous leukemia, and which reports that the Veteran displayed textbook symptoms of Agent orange exposure including dermatitis. The examiner should provide a complete rationale for the opinion expressed. If the examiner is unable to provide the requested opinion without resorting to speculation, then he or she should provide a rationale for why an answer could not be provided. 3. After the requested medical opinion evidence is obtained, the report should be reviewed to ensure it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner. Failure to ensure the adequacy of the examination report may result in another remand. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Once the above actions have been completed, the RO must re-adjudicate the issues on appeal. If any benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the appellant and her representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).

woo hoo!

So I am wondering if I should ask for a remand on the Accrued Benefits claim, and ask that they try to obtain a copy of his discharge physical. Or maybe it would be better to just proceed with what we have and get whatever decisions we get - and then write a Congressman and ask for their assistance in getting my husband's discharge physical. I was just wondering if they might try a little harder to find it if a Congressman asked. I certainly don't want them tying up the whole DIC claim for several years while they search for the physical. So I am hesitant to push the issue right now. But I am particularly aggravated that it appears that his discharge physical was NEVER in his C-file when they made all the other decisions, and no one bothered to mention it. But my husband had his discharge physical in June 1998. He filled out and signed his initial claim in August 1998. He retired in September 1998. The VA marked his claim as received in October 1998. But yet the denials only note "Your service medical records don't show X" but never mention his discharge physical. It just doesn't make sense that my husband would be claiming conditions before he retired, without making sure they were noted in his medical records. Of all the C&Ps and decisions, there is only one notation that his discharge physical didn't show X. But that was the C&P exam that we have asked to be considered inadequate because he made MANY inaccurate statements. All the other exams / decisions just note "The SMRs didn't show....X."

Thanks. Since the decision is supposed to be made upon the evidence that was in the record (or in the VA's constructive possession) on the date of his death - I wasn't sure if they sought medical opinions or if it could only be made on exactly what is in the record. But it looks like they can seek medical opinions, asking the VA examiners to offer an opinion based on the evidence in the record. So maybe it just means I can't submit more private medical records, buddy statements, etc. etc. So I guess the IMOs I submitted for my DIC claim don't have to be considered for the accrued benefits claim - as they were submitted after his death? But if they seek a VA opinion, then I have the right to submit an IMO that refutes that opinion (of the opinion isn't favorable)?

Thanks!

As my husband's discharge physical is not in his C-file, and there is not any indication it was ever in the C-file - if I can ever obtain a copy, does that mean I can use it as new and material evidence to reopen any and all claims that were denied because the SMRs didn't show X (as long as the claimed condition / symptom was mentioned on discharge physical)?

With the standard for accrued benefits for Veteran's dying in 2007 being what was in the record as of the date of death - I am assuming that means other evidence I submit for my DIC claim (for lung cancer) can't be used in determining entitlement for accrued benefits (for my husband's pending lung cancer claim). However, from some cases I have read it looks like the BVA sometimes still seeks a medical opinion on accrued benefits claims. So does this mean that they can ask one of their examiners to offer an opinion based on the evidence that is in the record, but I am not allowed to refute the opinion, or submit an IMO?

"I think I will start gathering that evidence and if there's not a decision by the time it's gathered I will send it in. I'm guessing that the judge will either remand or approve like he did lumbar strain." Okay... I can see that. That is kind of where I am on the asbestos exposure part of my claim - figuring, if we even have to go that far.. I should have enough submitted for a remand. I just don't know if I want to go to the expense of another IMO at this point.

"1. My chiropractor who I saw in 2007, then again in 2009-2011 is willing to see me and write a letter. Especially if they deny saying I complained of rhomboids or upper back and not cervicis splenius since those are all grouped together." A more likely than not letter = supports your claim. It is sad to see how many cases are denied because the veteran didn't submit a medical opinion to refute the VA examiner.

I am so sorry! :( So I am hoping this is a decision you can appeal.

john999 - I am kind of wishing now that I would have gone that direction a bit more. But I just didn't see much possibility getting my claim granted at the RO level because they seem to twist everything around to deny anyway. But maybe I should have tried harder at that level. Because, as you point out, if I lose at the BVA level, then I can't keep adding evidence.

Good luck LongTooth! It looks like you are taking some good steps.

"Should I be sending more records while the VLJ reviews, or let him do his thing and save them in case I am denied? And should I be doing anything else to prepare for denial?" I would think you would want the BVA to have any evidence that might help them decide in your favor. As far as preparing for a denial, you would want to make sure you have raised all the issues you will want raised - so if the BVA doesn't address them you might be able to appeal to the Court.

I thought most claims were generally off the rails at the VARO - and the BVA was the place to hopefully get them straightened out.

If MOS1833 can find any of the records -- then they might have to re-adjudicate the claim, right?

That is interesting Phil. I am close to St. Louis, and I called to request to be able to view my husband's records there. They said I have to request the records and then they when I receive notice they are available, I can call for an appointment. So it didn't seem any different than just having them mail me the records. But I would like to be able to go there and dig around some.

http://www.foia.gov/federal-records.html#deny What is the Privacy Act? The federal government compiles a wide range of information on individuals. For example, if you were ever in the military or employed by a federal agency, there should be records of your service. If you have ever applied for a federal benefit or received a student loan guaranteed by the government, you are probably the subject of a file. There are records on every individual who has ever paid income taxes or received a check from Social Security or Medicare. The Privacy Act, passed by Congress in 1974, establishes certain controls over what personal information is collected by the federal government and how it is used. This law guarantees three primary rights: (1) the right to see records about oneself, subject to the Privacy Act’s exemptions; (2) the right to amend a nonexempt record if it is inaccurate, irrelevant, untimely, or incomplete; and (3) the right to sue the government for violations of the statute, such as permitting unauthorized individuals to read your records. What information can I request under the Privacy Act? The Privacy Act applies only to records about individuals maintained by agencies in the executive branch of the federal government. It applies to these records only if they are in a “system of records,” which means they are retrieved by an individual’s name, Social Security number, or some other personal identifier.

MOS1833 - Do you have any of your SMRs? My husband's SMRs noted that a physical was done and a Form 2627 (Report of Medical Assessment) - extensive was completed. If your SMRs don't note that -- it could be one more link in the chain of evidence that there was no such exam.

Dear Congressman so and so, I would like to request your assistance in getting a copy of a document from the VA concerning my claims with them. VA decisions on my claim keep referring to a my discharge physical examination. However, as I never received a physical examination when I separated from the military, I have questioned their reliance on this document. I would certainly like to assure that records about me maintained by a Federal Agency be accurate. I have repeatedly requested a copy of my discharge physical from the VA, but have never received a copy, despite my repeated requests. Would it be possible for you to intervene on my behalf and assist me in obtaining a copy of this from the VA? Again, I am afraid even if they can't find a copy they will still try to rely on the fact that their "credible" examiners stated the exam said ____. And it looks like the court said it didn't matter if there was a copy of the exam in your file or not. ??? -- kind of odd that they wouldn't think an exam that relied on inaccurate facts would not be considered "inadequate." BUT -- it still might not hurt to push them on that issue. Others (who are much smarter than I am about such things) might have a different opinion though... But it is just a thought.

Others may have a different opinion - but your best shot now would probably be to reopen with new evidence -- an IMO -- and still keep working at building a case for an earlier effective date once it is granted. jmho though...

Would it help to ask your Congressman to assist you in getting a copy of the phantom discharge physical? Explain that it has been used to deny your claims and that you have consistently asked to be provided a copy of the document and have never received one. I would think they would either have to send a copy to your Congressman or tell your Congressman that it can't be found. However, I still wonder if they would say that just because it cannot be found now doesn't mean it wasn't ever in your file. And since their examiners "relied" on the document, and they found their examiners to be credible - they would just rely on what the examiners reported that it said anyway.

I got my first response from my FOIA requests. My husband was an electrician at Shaw AFB from 1970 - 1975. They responded that they did not have an asbestos management plan in place from 1970 - 1975, that their initial plan was 1989 - 1990, that they do not have a copy of the original plan, and that their medical surveillance plan was not implemented until 1996. They didn't respond as to whether electricians were included in the medical surveillance. This letter doesn't actually "prove" asbestos exposure - but at least it definitely refutes the VA examiner's opinion that my husband was not exposed to asbestos because he was not part of any medical surveillance programs.

I hate that when it feels like your mind is all tangled. One way I used to get it out was by painting. I just got paper and water colors and painted and painted. And you are so right - putting it on the paper got it out of me - at least for awhile.

You still might not be all of the way screwed. Even if the SSOC is in there - you have built a case to show you didn't get it. You didn't get it. Your VSO said they didn't get it. They have it NOW because it is in the record. But it couldn't be found in the record the other day when you tried to get a copy. And the RO had told you that it is odd that it isn't on letter head. Is it possible that they finished the SSOC, but never sent the letter (with the SSOC)? Even if you have to reopen, I would still try to make a case that you were never notified, and your claim is still pending. I am not sure if the RO would grant that - but it could possibly get you an earlier effective date down the road.