free_spirit_etc

"The age 23 limit is that they must START college by age 23, not that they must FINISH college by age 23. Remember these are "eligibility rules"... I am not seeing any eligibility rules that say they must start college by the age of 23 for dependent benefits. If the child STARTS college by age 23, they can complete the course of instruction. This is the same with DEA or "college age" benefits. I think the programs have different eligibility rules. One is for education benefits for a child, and another is for getting a dependent allowance for a child who is between the age of 18 and 23 but still in school. Maybe someone can help me find a regulation or case law on this. The VA is trying to hornswaggle me out of dependents benefits, but he was under 23 when he began college. I wish I could help you out. Did you get a notice that they are stopping your child's benefits?

Sorry. Her dependents benefits stopped at 23. It is confusing enough, hehe. LOL - I agree. Somehow the two programs got a bit tangled up in the discussion. As far as the dependent benefits - I would be very careful counting on them after the age of 23, even if you know someone who got them after that age.

I have been in contact with an Associate Professor of Environmental and Occupational Medicine at Robert Wood Johnson Medical School at Rutgers who might be able to assist me. But he said he would be pretty tied up with teaching and research until mid-October. But I do want to talk to him and see what he thinks about it.

And this is also why I kind of backed off on the asbestos exposure argument a bit. Substantiating it will cost $$ for a decent IMO. And if I am granted the claim on the basis that the cancer started in service, what caused the cancer would be a moot point. So I figured that the Board would either: 1. Grant my claim on the basis the cancer started in service. or 2. Remand the claim on the asbestos issue. As the only medical opinion on record that states asbestos did not cause my husband's cancer made the assumption my husband was not exposed to asbestos I don't think the Board could use that opinion to deny the claim, if the Board concedes he was more likely than not exposed. And the VA examiner didn't even mention the Interstitial Fibrosis, even to rule it out. So - though ILD isn't proof positive of asbestosis - I think it should still be discussed in the opinion. And though it isn't a fully articulated opinion, the fact that the treating physician noted in the treatment record Exposure Cigs & Asbestos ---> 80 x’s Risk - (and this is actually based on sound medical principles -- and not just some made up figure) - I don't think they could deny the claim at this point. So I would have time to work on getting a medical opinion directly related to the asbestos exposure, if it become necessary to establish my claim. So I keep going back and forth between - Do I get an opinion and put out more $$$ now? Or do I go with what I have (2 IMOs in support of my claim on the basis my husband's cancer started in service and enough evidence to establish probably asbestos exposure) and hope for a win or a remand? Or do I go for it all the way and get an IMO on the asbestos exposure now too? I THOUGHT I made that decision before my hearing. But now that I have 90 more days to submit evidence I am rethinking it again. Another consideration is how likely the judge would be to grant the claim on asbestos exposure if I did have an IMO. If he was likely to grant it when comparing my IMO to the VA IMO (that didn't consider exposure at all) then it might be worth the money. But if the judge would be more likely to seek another opinion, even if I have an IMO, then it might be more effective to let them go first, and see what position they take and how strongly they take that position.

Berta, Yes. I am puzzled by some of the reports. And what is odd is there wasn't much mention of the Interstitial Fibrosis after the diagnosis. But most of the notes we have are treatment for lung cancer. I even asked the doctor while we were working on the claim why no one was talking about his ILD. The doctor said because the cancer was more important. The pulmonologist documented about it a bit - but just referred to his restrictive lung disease. But I certainly don't think finding someone who just makes a blanket statement that he had ILD, and that proves he was exposed to asbestos is the route to go, unless they have a lot of strong evidence to support that. But I also think this enters the realm of lack of evidence does not constitute negative evidence. Of course, proving asbestosis would be very useful in proving that it is more likely than not that asbestos exposure played some role in the development of the lung cancer. But not proving you had asbestosis does not necessarily prove that your lung cancer is not related to asbestos exposure. In fact, I was reading the other day an article that discussed that 7 out of 9 studies concluded that asbestosis was not required for asbestos related lung cancer. Studies have shown that smokers who are exposed to asbestos who do not have radiographic lung changes still get cancer at a higher rate than smokers who are not exposed to asbestos. So, though it can be a stronger case if you can prove asbestosis, I don't think it necessarily defeats a case to be unable to prove that. http://www.ncbi.nlm.nih.gov/pubmed/20672325 " CONCLUSIONS: Workers from an Ontario asbestos-cement factory who did not have radiographic asbestosis at 20 or 25 years from first exposure to asbestos continued to have an increased risk of death from lung cancer during an additional 12 years of follow-up." http://thorax.bmj.com/content/60/5/433.full.pdf The question of whether lung cancer can be attributed to asbestos exposure in the absence of asbestosis remains controversial. Nine key epidemiological papers are reviewed in a point/counterpoint format, giving the main strengths and limitations of the evidence presented. Of the nine papers, two concluded that asbestosis was necessary and seven that it was not.

"The standard shouldn’t be to prove it was over 50% responsible for the disease. The standard should be that it is more likely than not that it contributed." Those two sentences makes no sense to me. Isn't "more likely than not, 51% or more?" It should be "as least likely as not" meaning 50/50 and the win goes to the claimant. jmo pr I think if you had to prove that asbestos was over 50% responsible for an individual's cancer, no smokers would ever be granted SC for cancer. I think you should have to show that there was a 50% or greater likelihood that the asbestos was a contributing factor (even if it didn't contribute 50% alone). For instance, my husband's pulmonologist documented in my husband's medical record . Exposure Cigs & Asbestos ---> 80 x’s Risk And he explained it to my husband and gave him a handwritten note that said: Former Smoker Best is 1.4 Times Smoker 10 Asbestos 8 Together --- 80 ß--- Now So wow! If you had a 10 times risk of getting cancer from smoking, and an 8 times risk of developing cancer from asbestos exposure - but BOTH of them combined jumped your risk to an 80 times risk -- then the combination of them together significantly increased your risk of cancer. BUT if they get into breaking it down to which factor caused how much of the risk then - then they can say that tobacco caused a greater risk (if taken alone), than asbestos exposure did (if taken alone) - and therefore it is less likely than not that asbestos caused the cancer. But it would seem like anything that increased your risk from 10 times risk to an 80 times risk, is somewhat significant. But if they take something that works synergetically, and try to separate out the effects, the remove the effect of the synergy, and it looks like one thing had more effect than the other.

I think we are discussing two different kinds of benefits. One is for education and the other is dependent benefits for a child.

Oh... I was focusing on Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) I think their regulations on childrens' benefits are not really clear. The DEA (Chap 35) say they pay education benefits through the age of 26. http://www.gibill.va.gov/benefits/other_programs/dea.html Period Of Eligibility If you are a son or daughter and wish to receive benefits for attending school or job training, you must be between the ages of 18 and 26. In certain instances, it is possible to begin before age 18 and to continue after age 26.

The word 'Interstitial 'is often a medical catch -all term..... Did any med rec of your husband define this term as non-idioathic interstitial fibrosis? No. The original chest x-ray said There is diffuse interstitial disease throughout both upper lobes, with a predominance in the lingual and middle lobe. The appearance is reticulonodular. Impression: Bilateral upper lobe reticulonodular interstitial disease. The differential diagnosis includes sarcoidosis and pneumoconiosis.” The pathology report says There is mild interstial thickening and pneumocyte hyperplasia. Numerous intraalveolar macrophages are noted. There is no inflammation. There are no viral inclusions or granulomas. Final Diagnosis – Interstitial Fibrosis, Mild Was he autopsied? Sorry if I asked that already. No. I didn’t get an autopsy. But I was wondering – the pathology report didn’t say anything about asbestos bodies – Would they have automatically looked for those? Or do they have to do a special test? I would expect a VA examiner to try to build a case on why my husband’s Interstitial Fibrosis was not asbestosis. It seems like they try to say that if they don’t have another asbestos related lung disease, then it could not have caused cancer. So they build a case for the second point and act as if that proved the first point. Asbestos cases do seem to be cases they seek medical opinions on, even if the vet submits an opinion. But then, again, a majority of the cases I have read at the BVA site have been cases of people claiming for COPD and emphysema – and trying to link it to exposure with some pretty weak (or reportedly weak) opinions from treating physicians. And there are quite of few people who file claims who don’t even have a diagnosis yet. They just have symptoms. So again – there are lots of cases where the VA doctor says no – and the vet submits a couple articles that say X can cause Y. Those claims don’t do very well. As far as cancer cases, I have seen quite a few of those attributed to smoking. Though I do understand the reasoning, I still think it is based on some faulty logic. Of course, they report that 90% of lung cancer is caused by smoking – implying that means only 10% could be caused by something else – and 10% is less than 50%. Or smoking increases your risk of cancer by X, and asbestos increases your risk of cancer by Y – and since X is bigger than Y, X must have been the cause and Y didn’t matter. I don’t see where it should be necessary to show that asbestos played a bigger role than smoking. It would seem like you would only have to show that it is more likely than not that asbestos played some role. The standard shouldn’t be to prove it was over 50% responsible for the disease. The standard should be that it is more likely than not that it contributed. The Environmental Protection Agency, The Agency for Toxic Substance and Disease Registry, The American Lung Association, The National Institute for Occupational Safety and Health, the American Cancer Society, and the Surgeon General, and multiple other agencies report over and over again that the risk of cancer from smoking and asbestos exposure is greater than the risk of either one of those factors by itself. Most studies show the risk is multiplicative; not additive. Their statements are established medical principles that have been confirmed in multiple studies. So, to me, when the VA examiners are stacking the cards a different way to deny claims, they are going against well-established medical principles to do so. It would seem almost like as much as is known about the synergetic effect of smoking and asbestos exposure, they would have to give an opinion that fully articulates why this well established medical principal does not apply in the veteran’s case to deny the claim. But I know that is not the way things work. And then, again, a lot of the vets didn't have IMOs.

pr, - Wow! That is interesting. I never heard of that before. I have seen a couple of BVA cases where the VA doctor opined asbestos didn't contribute to the lung cancer because it wasn't mesothelioma. They disregard the fact that medical studies show that asbestos can increase the risk for lung cancer AND mesothelioma.

jbasser and T8r, Thanks for the input. I keep trying to think of things I have overlooked (which is probably a lot). I did get one response to my FOIA email letting me know that I should get my information by October 7. I hope they address my specific questions and don't just send me one of those generic letters stating that there were occupational safety programs for all known hazards and that each base followed procedures they should have.

Thanks for all your answers Harleyman. If I recall, the xrays did show arthritis, but they did not find any treatment in the service. I do have a copy of the C-file, but we have never been able to get a copy of his discharge physical. The record shows one was done, but the VA says they don't have a copy and the National Records Center says the VA has all the medical records. It just seemed like if you had reported the injury to the VA before you even retired, that you could show that you did have the injury before you left the service. As my husband is deceased most of the conditions are now kind of a moot point. I am sorry for not making that clear. It was just puzzling to look through the file and see things like that.

I guess that is a good point pr. There don't seem to be many cases on adopted children at the BVA. Most of them are cases for people raising grandchildren that they haven't legally adopted who are seeking equitable relief. I was actually surprised to have the topic come up at my hearing because they didn't send the correct information for the notification letter for child's benefits. So they sent another letter later telling me they had left some things off and that I had more time to reply. So I have been separate SOCs on the helpless child issue and have had to file separate appeals. I haven't actually received notice that the helpless child issue was set for a hearing. But the judge did ask questions about my son and said he had a Form 9 for it. But the appeal on this claim was running a year behind my own DIC claim - so I was surprised it even came up at this hearing.

"Claimants often do that too. They tell a story in support of their claim,full of extraneous stuff that only turns off the attention of the rater. Or maybe VA will read it all and find in it something that VA then uses against them." This has me wondering. My claim is for my husband's lung cancer. Granted, it is in the record that he smoked. But I couldn't understand why my VSO asked me at the hearing if it was true my husband started smoking before he entered the military. I said I didn't know that for a fact because I didn't know my husband before he joined the military. I wouldn't know for a fact when he started smoking. Then he asked how much he smoked. I have no idea why he asked me that at the hearing. He totally put aside all the evidence I had to present and wanted to focus on how long and how much my husband smoked. Again. It is obvious he smoked from the records. But why would my own VSO try to focus on that at my hearing? I feel like I really blew my hearing because I went in prepared to state my case of evidence I had of his cancer starting in service - and the VSO started asking me about all the places my husband was stationed, and when he was stationed where. He knew dang good and well I wasn't married to my husband at that time. I know plenty of stories about plenty of places, but I just don't carry in my head exactly when my husband was where. But I do carry in my head the information related to my claim and the evidence I have to support it. I feel like I really blew my hearing because I ended up looking like I didn't even know anything about my husband. But your advice is well taken. I wish I had a second chance to clarify things. But none of those things were really relevant to my claim anyway. I just don't know why the VSO focused on them.

Harleyman, That is something I never understood about my husband's claim. He filed his claim with the VA several months before he retired. He listed a shoulder injury on the initial claim. I would assume that he also mentioned it on his discharge physical, since he was filing a claim for it. But it is hard to tell because the discharge physical is missing from his file. When he got his C&P exams, they found that his shoulder was injured, but they said since it wasn't in his SMRs they didn't have any evidence it started in the service. The C&P exams were 7 months after he retired. It just seems like with 28 years in the service, and the fact that my husband brought it up before he retired, it would have been service connected.

Great news that you could help your buddies so much!

Good luck!

I decided to take some time to continue to build my asbestos claim - since the judge granted us 90 days to submit more evidence. The RO pretty much conceded that my husband was exposed to asbestos. The SSOC case states "During the pendency of his claim and appeal, several statements were submitted from fellow servicemembers, that confirms the veteran's exposure to asbestos." But I am assuming that the Board does not have to accept that concession - and so it would be best to make sure I have enough information submitted to show that it is more likely than not my husband was exposed to asbestos. I did point out in my appeal that the RO was in error in using a 2002 VA opinion in denying the claim, as the VA examiner had made the assumption that my husband was not exposed to asbestos in forming his opinion. The examiner stated my husband was not a part of any medical surveillance, or occupational screenings – and stated that my husband didn’t have any unique medical conditions that could be attributed to asbestos. (My husband does have a pathology confirmed diagnosis of Interstitial Fibrosis – and when you get right down to it – lung cancer IS a unique physical condition that can be attributed to asbestos.) We have: 1. My husband's own statements that he was exposed to asbestos, and the types of work he did that created the exposure. 2. Statements from 4 individuals who also worked in the electrical shop with my husband. Two of those statements specifically refer to the fact that after my husband left they found out they had been working with asbestos and stated getting hazmat training, chest x-rays, etc.) 3. Evidence that there were no OSHA standards for permissible levels of exposure to asbestos prior to 1975. (My husband was an electrician from 1970 – 1983). 4. Evidence that the OSHA standards for the construction industries were implemented in 1986. 5. Evidence that the initial Air Force standard for Asbestos Management was dated December 1988. 6. A portion of an asbestos survey at the last base my husband served as an electrician state-side which showed significant problems with asbestos in many of the buildings. 7. An internet posting by an asbestos abatement company that showed buildings at Andersen AFB they removed asbestos from. 8. Evidence that electrician is a career field which is frequently cited as being exposed to asbestos. One thing that doesn’t help the claim is my husband turned in a letter from a Col. he had written to. He specifically asked about asbestos programs. But she just responded that the Air Force did have Occupational Health Programs in existence at that time. And she stated each base should have followed procedures, and she would assume that my husband was not exposed to any hazards above the occupational exposure limit if he was not part of any medical surveillance. I pointed out in my argument (that I haven’t given the judge yet) that though she said they had Occupational Health Programs in existence, she didn’t state they had specific programs for asbestos in the 1970’s early 80’s. And I also pointed out that though she said she would assume that he was not exposed above the occupational exposure limit – that there were NO occupational exposure limits set for the construction industry prior to 1986. I wonder if it would be good to get further clarification from her (or whomever had replaced her) though – and write her a letter asking for clarification. i.e. You said that there were Occupational Health Programs in existence at that time. Could you tell me if those programs specifically covered asbestos? You stated that you would assume my husband was not exposed above the occupational exposure limit. Could you tell me what the occupational exposure limits for asbestos were from 1970 – 1983? Or should I just leave that alone – and include my argument concerning that letter? I also sent this to the bases where my husband was stationed when he was an electrician: I am seeking this information under the Freedom of Information Act. I am seeking releasable information regarding asbestos management plans or asbestos operating plans for XXX XXX Base. I am specifically seeking the following information: 1. Any asbestos management plan for XXXX Base in effect in the years 19XX– 19XX. 2. What year the initial asbestos management plan at XXXX Base was implemented. 3. Whether Electrical System Craftsman (3E071) were included in any medical surveillance, occupational screening, hazmat training, or any other such programs once the plan was implemented. 4. Whether medical surveillance, occupational screening, hazmat training, or other safety programs included workers with past probable occupational exposure, or if they only included current and subsequent workers? (i.e. if the employee had previously, but no longer, worked in the job classification once the plan was implemented, would they be included in such programs). I am willing to pay fees associated with the above search. However, I ask for a waiver of such fees as I am seeking information to help establish the likelihood of my (deceased) husband being exposed to asbestos for my claim with the Department of Veterans’ Affairs. Thank you very much for considering my request, Any other ideas? And yes… I know… I know… IMOs – but I need to convince the Board that is more likely than not my husband was exposed to asbestos before I can convince them that the asbestos exposure can be linked to his cancer.

Thanks for posting this. I haven't ever looked at ebenefits. But now I know not to panic when I do.

That is interesting bronchovet. When reviewing my husband's claims, I see that his case got all the way to the BVA - and they sent it back to the RO because his DD214 wasn't in there. That held the claim up for at least another year. It would seem like it would be so much better if the BVA could just have had my husband send another copy of it. I know I sent numerous copies of my husband's death certificate and numerous copies of our marriage license, because the VA kept saying they didn't have it. And I know there were several copies of my husband's DD214 in the file when I received a copy of the file. But the VSO tried to tell me it wasn't in his file. The way my RO files things, it is kind of hard to tell what is in the file and what isn't. I didn't send copies of hospital records for my husband's last illness. I never even bothered to get copies. My husband had already filed the claim and sent records from when his cancer was first diagnosed and when his cancer recurred. It would seem like it would be pretty obvious that the metastatic lung cancer listed on his death certificate would be the same metastatic lung cancer the record shows he was being treated for up to when he sent records about 6 months before he died. But when the judge asked me if all the medical records were there, I hesitated, and said I think they are all there. I wasn't really sure what "all there" meant. All the records I thought were needed to prove my claim? Every record anywhere about my husband? The RO didn't ask for more medical records. To me, if the question is when his cancer started, or what caused his cancer - the first 6 years of medical records would be enough. But now I wonder if I was supposed to get more records. Or if I should try to get more records and send them. Or if the judge will think I was lying if I said all the records were there, but I didn't get all of the records. I didn't actually look at the C-file when I was at the hearing. My VSO had it. And it is HUGE. I mean several volumes. But now I keep wondering if I should send more.

Ah... at least this issue has some BVA decisions to look at. I think the benefits end at 23. http://www.va.gov/vetapp11/Files3/1120295.txt In response to his February 1999 inquiry, the RO sent the Veteran a letter later in February 1999 informing him that he was "eligible for your dependent daughter through the age of 23 as long as she is attending school." This one gets all into the commencement part. It looks like there are quite a few people who don't file within one year of the child starting school - and they lose benefits: http://www.va.gov/vetapp12/Files5/1236810.txt However, compensation based upon a course of instruction at an approved educational institution which was begun after a child's 18th birthday may be paid from the commencement of the course, if a claim is filed within one year from that date. 38 C.F.R. § 3.667(a)(1)-(2) (2011). Based on that regulation, the effective date of the addition of V.L. to the Veteran's award may be up to one year prior to the date of claim since the enrollment form submitted by the Veteran shows that V.L. attended college courses at an approved educational institution for the entire one-year period prior to the receipt of the Veteran's March 9, 2009, claim. That regulation specifically states that the effective date may only be from the commencement of the course in cases whether the claim is filed within one year from that date. Although the term "course" is not specifically defined, interpreting the regulation in the most favorable light to the claimant, it is reasonable to assume that the commencement of a course means the beginning of a semester, or the beginning of an individual class in any given semester. Based on that assumption, the Veteran would be entitled to an effective date at some point within the one year period prior to the date of claim during which V.L. began any semester. Therefore, in the Veteran's case, one year prior to the March 9, 2009, claim would be March 9, 2008. That date, according to the university enrollment form, unfortunately falls after commencement of the Spring semester 2008 commencement date of January 7, 2008. Because January 7, 2008, is outside the one-year time frame, that date cannot be legally assigned as the effective date. The next commencement date for a semester or course of study, according to the university enrollment form is August 25, 2008, the beginning of the Fall 2008 semester. August 25, 2008 falls within the one-year period prior to the March 9, 2009, date of claim, and it is documented as the beginning of the Fall 2008 semester. Thus, August 25, 2008 fits squarely within the regulatory framework as a legally assignable effective date for the addition of V.L. to the Veteran's award based on a dependent school age child attending college under age 23. The Board finds no basis to assign any earlier effective date. To summarize, the Veteran's claim was filed within one year of the commencement of V.L.'s Fall Semester of 2008, which began on August 25, 2008. There is no earlier commencement date for a course of study or semester that falls within the one-year period prior to the date of the March 9, 2009, claim to add V.L. as a dependent to the Veteran's award. Therefore, August 25, 2008 is the earliest effective date assignable by law to add V.L. to the Veteran's award in accordance with 38 C.F.R. § 3.667(a)(2) (2011). 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date of August 25, 2008, but not earlier, is granted for the addition of V.L. to the Veteran's award.

Harleyman, Thanks so much for sharing all that. It explains some things.

See what I mean about how you can read those child's benefits laws over and over and over, and still have trouble figuring out if you qualify or not. (Sigh...)

(2) Pension or compensation based upon a course of instruction at an approved educational institution which was begun after a child's 18th birthday may be paid from the commencement of the course if a claim is filed within 1 year from that date. _____ I think here - they are saying beginning; not end. A child's benefits end at 18. But if they go to school - and file a claim within a year of starting school, they will pay back to the date school commenced (started).

I think they could have been much more clear in how they worded the whole children's section. It gives bits and pieces that have to be strung together. For instance 3.57 - Child. (a) General. (1) Except as provided in paragraphs (a)(2) and (3) of this section, the term child of the veteran means an unmarried person who is a legitimate child, a child legally adopted before the age of 18 years, a stepchild who acquired that status before the age of 18 years and who is a member of the veteran's household or was a member of the veteran's household at the time of the veteran's death, or an illegitimate child; and (i) Who is under the age of 18 years; or (ii) Who, before reaching the age of 18 years, became permanently incapable of self-support; or (iii) Who, after reaching the age of 18 years and until completion of education or training (but not after reaching the age of 23 years) is pursuing a course of instruction at an educational institution approved by the Department of Veterans Affairs. So does that mean they don't pay benefits after 23? Or the child can't start the education after the age of 23?