free_spirit_etc

{hugs}

I am not sure. I know when my husband picked up all this records from the VA (paper at that time) - we asked if that was ALL of his records, and they told him no - that they generally didn't release mental health records to the veteran. It was just a mental health C&P exam. So he asked for a copy -- and they said they had to read it first to make sure there wasn't anything in there that might upset him. They read it over and then gave him a copy. So your VA might have a policy of not releasing the records unless specifically requested (and unless they can verify that you won't be upset.) Geez! My husband was more upset about some of his non-mental health C&P reports.

Oh.. okay. I just interpreted it to mean that age is not a factor for disability claims, but is a factor for pension claims.

"but also awaiting decision on On The Review Request. Attorney says this OTR Request is currently with the judge, who can make a decision based on my current record, in lieu of a hearing." On the Record Review can be a good thing. That generally means that there is enough in the file to grant the claim without a hearing. But even if the judge doesn't grant it on the record, doesn't always mean something bad. Sometimes the judge just has a couple of questions they want answered. My friend was just granted disability last year. Her attorney kept saying he didn't understand why the judge didn't just grant it on the record. Before the hearing, he requested an OTR decision, but the judge still held the hearing. Since my friend's disability started with a work injury - there was quite a bit in the record that was "against" her claim -- mostly old records from the workman's comp doctors. But one old record from her OWN doctor, was what bothered the judge. Her doctor wanted her to get an MRI, but when she checked on it she was told that if she got tests / treatment from anyone but the workman comp doctors, that workman's comp would not cover her medical bills. The doctor wrote in her medical records that she refused to get treatment for her back condition and that she didn't want to get better. When your treating physician writes something like that in your file -- it is not a good thing. That was what the judge asked her about. She explained it to the judge - and told him she did get the tests and treatments - just not from THAT doctor. Granted, I don't see how what you did or did not do over 10 years ago has anything to do with whether you are able to work now. But her doctor had painted a picture of someone who didn't want to get better (i.e. someone who was trying to be disabled). The judge granted her benefits the day after her hearing. Her attorney called and told her that he had never seen the judge issue a decision that fast - but when he checked his cases the next day he saw the judge had already issued a favorable decision. So even if the judge decides to have a hearing -- they might just have a couple things they need answered.

Can you get an increased rating with your physical conditions? As far as if you can work, if you are limited to sedentary work, but can't sit in one position for very long -- that pretty much rules out most sedentary work. I am not really sure how the VA does it - But SSA would have to show that there were jobs available in the economy that you would be able to do with such restrictions. (Of course, they always come up with something -- like he / she could drive a train at the zoo, or peel bananas for Dairy Queen... But they rarely find realistic jobs).

"It seems writing about it here helps me release my anger or mischeaveosness." It is a good thing to write here then. ;) Stay safe!

I am not familiar with TDIU claims - but this statement certainly does sound supportive of your claim. Do you have trouble sitting for any periods of time? Or do you just need to shift your position a little? 20% combined other seems kind of low if the doctor is saying you aren't able to do physical or sedentary work due to your physical limitations.

Thanks for sharing the good news! And good luck with all the rest!

The judge I had at my hearing (for survivor benefits) used to write a blog. Here is what he said about having an attorney. http://edpitts.blogspot.com/2008/10/being-represented.html "At least two thirds of the cases I review are quite difficult to decide. Most of these cases can probably be won with skillful representation. I'm fascinated by which of these claimants manage to hire competent counsel, which hire incompetent counsel, and which seem unable to find counsel even with significant effort. I've not heard enough cases yet to even form a theory about why this happens."

That's interesting shipswriter. I have noticed that most of my husband's SMRs are sinus, bronchitis, and upper respiratory problems -- especially in the 70's and 80's. I haven't found a lot of info linking sinus and URIs to asbestos in particular -- but it would seem like any kind of dusty stuff being breathed in would cause those problems. I have noticed a few older BVA cases where the Board noted the the wife / widow said the veteran had to clear his throat a lot, or use throat drops for years. So it must be relevant.

Do you know the name of your judge yet? I got a letter from mine before my hearing and did a bit of research on him. I found out that he had been a big Workman's Comp attorney - representing claimants -- so I felt more at ease ;)

Good luck on your hearing! If your attorney is optimistic - that is a VERY good sign.

Thanks for reporting back on that.

That is interesting about your service dog. What kind of dog do you have?

What are we supposed to guess?

Something that surprised me was that they don't always have to give you your mental health records. When we went to the VA to get my husband's records we asked if they gave us all the records. They said no - that they had done a mental exam, but they didn't generally give those out. My husband asked for his, but they had to read it first to make sure there wasn't anything in it that would "upset" him. So you might also see if they will release your medical records to your private doctor to make sure you are able to get them all.

M21-1MR, Part IV, Subpart ii, Chapter 2, Section C Notes: The biological actions of the various fibers differ in some respects, in that chrysotile products have their initial effects on the small airways of the lung cause asbestosis more slowly, and result in lung cancer more often, and crocidolite and amosite have more initial effects on the small blood vessels of the lung, alveolar walls, and pleura, and result more often in mesothelioma.

No. I haven't. I think my husband talked to one when he was alive. I think he even sent them some medical records. But isn't there a statute of limitations on that? My husband died in 2007.

Thanks harleyman. I have some of that stuff from NIOSH and other places. The hardest part of searching is getting past all of the mesothelioma lawyer websites. Granted, they have the info -- but they never cite their sources, so the info is pretty useless (as far as using it to substantiate anything). I just found a book CURRENT Occupational & Environmental Medicine: Fourth Edition ISBN-13: 9780071443135 "In addition, the variety of occupations associated with asbestos exposure leads to problems with overlooked exposures. Exposure occurs in the milling, mining, and transportation of raw asbestos and in the manufacture of asbestos cement pipe, friction materials, textiles, and roofing materials. Construction workers, plumbers, welders, and electricians are all exposed, and shipyard tradesmen can be “innocent bystanders” when they are exposed to airborne asbestos fibers." But I have seen BVA cases where people have turned in something from an airplane manufacturer to show that the plane had asbestos. But that might just be for cases where the claimant is just claiming one thing that exposed them to asbestos. But with my husband, it was a long-term (13 year) period of different types of exposure. Probably the strongest evidence is the buddy statements where the guys stated that in the mid-80's they found out they had been working with asbestos and started getting hazmat training and chest x-rays. But none of those were "sworn" or whatever -- including the statement that they were swearing that under oath. We didn't read about doing that until after my husband got the statements, and he didn't want to go back and ask the guys to re-do them. But the guys did include their phone numbers and or their addresses. And the SSOC said the buddy statements confirmed asbestos exposure. So I would hope if the BVA would consider them to be "not credible" they would at least let me know and give me the opportunity to get "sworn" statements. I guess the other thing I could do is to try to get ahold of the guys and have them sign a sworn statement that the statement they wrote was true. I should hear back on some of my FOIA requests for when the bases started asbestos safety programs, and whether electricians were included in the programs. The only other thing is that after showing my husband was exposed to asbestos, I would still need to show that the exposure was linked to his cancer. Though he has a diagnosis of interstitial pulmonary fibrosis, he did not have a diagnosis of asbestosis. With a diagnosis of asbestosis, it would be pretty easy to prove. But it seems like a lot of the VA examiners will opine that if the veteran didn't have asbestosis, asbestos didn't cause their cancer. Sometimes the judges buy into that argument, and sometimes they don't. Most studies show an increased risk of cancer, regardless of whether the person has asbestosis or not. And I will still need to decide pretty quickly whether I want to pay for an IMO on the issue now, or wait and see if it is granted on the basis that the cancer started in service (which would make the asbestos exposure issue a moot point). If the judge doesn't grant it on the started in service basis, I don't think he can deny it at this point on the asbestos issue. I think he would have to grant it (probably not at this point) or remand it, or get another opinion from a doctor who takes the asbestos exposure into consideration. I think at this point, the evidence in favor of asbestos exposure is greater than the evidence against it. We don't have a medical opinion yet that comes right out and says it was caused, at least in part, by asbestos exposure. But the surgeon, pulmonologist, and oncologist all noted asbestos exposure as part of the relevant medical history at the time of diagnosis / treatment. From what I read, this can be very relevant, as they associated asbestos exposure with his cancer from the beginning. And the pulmonologist noted my husband had an 80 x's risk from exposure to asbestos and cigarettes. These were part of his treatment records and not written just to substantiate a claim (i.e. making them more "credible"?). At least from the cases I read they hold it against the person if the medical records say nothing about asbestos exposure until the veteran files the claim. In my husband's case, the surgeon noted asbestos exposure when it was diagnosed in 2000. And my husband didn't even file a claim for it until 2001 when his pulmonologist told him it probably started in service. So it should be pretty apparent (if pointed out) that he didn't just make asbestos exposure up after the fact because he had filed a claim. The only evidence that asbestos exposure did not contribute to my husband's cancer was the 2002 VA examiner who stated my husband was not exposed to asbestos. We wrote a letter asking the VA to consider the exam inadequate because of all the factual inaccuracies in the report. So if the judge agrees it is more likely than not my husband was exposed to asbestos - he can't really rely on that opinion to deny the claim. In fact, that was one of my areas of appeal - that the RO conceded that my husband was exposed to asbestos, but still relied on a medical opinion that didn't take his asbestos exposure into consideration to deny the claim.

I have been going by the Electrical System Craftsman (3E071) on my husband's DD214. And he mostly talked about being an Interior Electrician. But he submitted information to the VA that he worked with MB-18, MB-19, EMU-21, EMU-22 diesel and "Dash 8" gas turbine generators for his first 4 1/2 years (In an Air Force Tactical Control Squadron). His Hearing Conservation Data form foor this time period confirms this. It has him listed as 54250 / Electrician - and describes his duties that expose him to noise as "AGE Equip. Mechanic. He also said that he worked with A/E32C type mobile air conditioners / heaters. He said these all had asbestos heat shields and wiring. He says he was responsible for constructing, maintaining, and using the entire electrical distribution system when deployed - and that required heavy soldering and wearing asbestos gloves. And he said that when in garrison he was responsible for the electrical systems in approximately 6 buildings (all built in or before 1960). This involved climbing over and under asbestos coated pipes and attic insulation, and drilling through wallboard, cement board, and ceilings to include drop ceiling tiles. (This was at Shaw AFB - early 1970's) He also said at Baudette Radar Squadron - in mid 70's - There were no exterior electricians - and so he did both indoor and high voltage work. He said all building s were pre-60's and asbestos insulation was used widely. He said he also had to work on all the electrical equipment in the dining facility that was old and had asbestos heat shields and wiring. He also had to maintain the central heating plant with huge boilers that were insulated with asbestos that was broken, crumbling, and deteriorated. I need to locate the initial paper he turned in (It is somewhere in a big pile of papers right now). But I know he also talked about working in the Air Field Lighting Vault during a Typhoon (operating the lighting by hand). I have tried to look up info on the generators he mentioned -- but have not come up with anything yet. It doesn't seem like it would be this hard to try to show that someone who worked as an electrician in the 1970's and early 80's was not only exposed to asbestos, but consistently exposed to asbestos.

Good luck! And make sure you get copies of all the exam reports, xray reports, lab work, etc. You won't get them that day, but should be able to get a copy in a few weeks. Do NOT trust the Regional Office to accurately report what the doctors said.

Awww - That is so sweet! I wish my RO had people like you!

This is what is important -- implicit denial doctrine. So it would be whether the Board considered the claims to be implicitly denied. It does look like as long as they mention it, they often consider it implicitly denied.

Your claim for DIC is a separate claim than a claim for accrued benefits. Apples and Oranges but both fruit. I would send in a VA Form 21-4138 requesting all pending claims at the time of your husbands death, be reopened. ​Would I do this even if I have already had my hearing? Also, request a complete copy of all records the VARO has in your husbands claim file and all electronic evidence to date regarding your late husband. Hmmm. I am not sure I have electronic evidence. I just have a copy of the C-file. His C-file is at the BVA now. Revew every page and every complaint your husband had while in service. You didn't mention when your husband served, however, there are many illnesses that are presumptive to certain periods of service. This is important for determining if your husbands death was due to a condition that should have been service connected. My husband served from 1970 - 1998. He did not have boots on the ground in Vietnam. He did serve 186 days in Desert Storm. He has filed for undiagnosed illnesses, and they decided to diagnose them. :) So the best basis of a claim I have right now is that some of these conditions should be SCed based on the diagnoses. He claimed them at the time of his discharge and reopend the claim in 2003. He did get a SOC in 2004, denying them all as due to undiagnosed illness. But he did not appeal at that time. I am just trying to see if I can get some of them to be consider unadjudicated, and pending. YOU ARE NOT GREEDY to want what is your or your late husbands entitlement. Open your claims. Stay close to the Hadit forum as there will be lots of help availabe to you ...for FREE. You will be surprised as to the knowledge of the members here both individually and collectively. Wish you the best.- Harleyman My husband died in 2007. I think the regulations for accrued benefits have changed since that time. I am under the regulations where the widow pretty much has to show the claim was pending at the time of the veteran's death - and it has to be decided based on the record at the time of the veteran's death.

Thanks everyone! I have a copy of the C-file (as far as I know). And I have already had my hearing (ugh.... judge was nice - bad VSO). And I kind of held a spot open for accrued benefits for other conditions in my substantive appeal, stating "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." But I wasn't sure what direction to move because widows don't have the right to claim a CUE for accrued benefits. They can claim a CUE on their own claims, but they can't claim that their was a CUE involved in one of their husband' previous decisions, in order to get accrued benefits. I am thinking that if I could ever get my hands on my husband's discharge physical, they might have to readjudicate the claims though. I really don't think they have ever had a copy of that in the file. It seems very odd that no one talked about it. They always just say "your service medical records don't show this or that..." but they don't refer to his discharge physical. The best bet I seem to have is to find claims that the judge might consider unadjudicated. That would pretty much be the symptoms that were reported to the VA at the time my husband retired, that were later denied SC as due to undiagnosed illnesses, but not really adjudicated to see if they could be otherwise SCed. For some of them, the VA did briefly mention that that the record didn't show chronic ___ (whatever the condition was) in service. But others do not mention that. As long as that was stated - the judge might say the claim for it was adjudicated. But just mentioning that the records don't show chronic whatever in service doesn't seem like a full adjudication, unless a doctor had actually stated the condition was not service related because of that. As far as the law on unadjudicated claims, there seems to be decisions in both directions, so the judge could find precedents to back his decision no matter which direction he went with it. I have to stay away from errors, because CUE is not available to widows. I have to focus on whether any of the claims can be considered unadjudicated (and thus still pending). We were aware that some of these conditions should have been SCed during my husband's lifetime. However, most people advised to not bring them up yet, because it would slow down the lung cancer claim. In retrospect, that might not be the best advice for someone with a terminal illness. Probably the best advice is to not file them yet, as they might slow down the claim -- but prepare them, and have them ready to file on a moments notice. And if your condition starts going downhill, get those filed - so they will be filed during your lifetime, and thus, a pending claim upon your death. As far as greedy - I was just reading about how you shouldn't file too many claims at once, or the judge will be more likely just think you are being greedy, and deny them. But as I have already had my hearing, it is kind of now or never time for me. I have about two more months left to submit other evidence in support of my claim.