free_spirit_etc

Thanks brocovet! I have read those laws so many times, and always got tangled up in the "subject to the provisions of" clauses. It didn't look like he was eligible, but I kept pursuing the claim in the event I was missing something. Pursuing it was just sending in his claim and proof of disability - and then appealing when they said he wasn't eligible because my husband wasn't service connected.

I am not sure my son will qualify as a Helpless Child for DIC. He was incapable of self-support prior to reaching age 18. And he was adopted by my husband. But based on my reading of the law, I am not sure my son is qualified. – however, I have kept his claim alive because I wasn’t 100% certain, and I didn’t want to give up his right to anything he might be entitled to. So I am wondering what to do at this point. I am thinking I should withdraw the appeal. I was going to ask the judge – but getting the VSO kind of ruined being able to ask the judge things. I did specifically ask the VSO, but just like with all the other issues, he didn’t really listen to what I said – He just told me that benefits were based on dependency – and I would need to provide the adoption papers. It is odd, but the only thing the RO required was a copy of the Birth Certificate showing my husband’s name as my son’s legal father.

Hollis, I am also potentially affected by the windfall provision. My pension now is SURS (State University Retirement System) -- if my state has any money left when I retire. (My state not only didn't contribute their portion of our contributions, they spent our part.) The windfall provision seems to make the assumption that SS payments made by government workers were from small part-time jobs. Since low wage workers get a larger percentage of their income in SS benefits, they felt it was wrong to pay those same benefits to workers who relied on other (non-SS-covered jobs) for their income, and were merely supplement their income with an SS covered job. Basically lower paid workers can get about 55 % of their working pay in SS benefits; where higher paid workers only get about 25% of their income. So they figured if the gave someone who was merely supplementing their government income with a SS-covered job, 55% of those earnings back in benefits - that it wasn't fair- because they weren't actually low wage workers. They just had a part-time job that was not a major portion of their income. Social Security says the windfall provision helps adjust the payments to be similar to the payments someone would receive if all their income was from covered employment - but $X was for a part-time job. So they are saying basically, you are in a different position if you earned $5,000 in a year and relied on that income to live on, than if you made $40,000 from a non-covered job and $5,000 from a covered job. So instead of paying you benefits based on the idea that you were living on $5,000 a year, they pay you benefits you would have received if you earned $45,000 at a covered job instead of $40,000. That is oversimplifying it, but that is the basic idea. In my case, I was working at a nursing home that was run by a church in 1983. The nursing home did not pay into Social Security in 1983, but began paying it in 1984. I remembered they had meetings before that and even gave us pay raises to help offset some of the cost to us of having SS payments withheld from our pay. SS says The Windfall Elimination Provision does not apply if: and it lists several provisions which include "You were employed on December 31, 1983, by a nonprofit organization that did not withhold Social Security taxes from your pay at first, but then began withholding Social Security taxes from your pay;" I called SS several years ago and asked how to get it recorded on my record that I was working for a non-profit December 31, 1983 - and was covered by this." They tried to tell me that I would have had to have retired from THAT job and drawn retirement based on THAT job. There is nothing in the provisions that state you have to work at that job until you retire and draw retirement from them. Nursing Home jobs don't generally even have retirement pay. The they said "You didn't even have a job that paid SS in 1983. You started paying in 1984. (Uhmmm... yes... that was the non-profit employer who did not withhold SS in 1983 and began withholding it in 1984 - the one that makes me eligible to be exempt from the windfall provision....) But then they told me they can't get it recorded in my SS record, and I have to wait until I retire to get a statement from that employer then. They sure have been able to record other things on my record when they want to. My retirement income from SS OR SURS won't be extremely high. But when I retire, I could start drawing 100% of my husband's benefits. But since you can only draw about 150% of benefits on the record of one worker, that would mean my son (disabled) would have his income dropped from 75% of my husband's benefits to 50%. So if I can shift some of the benefits I draw over to my own record, that will preserve his higher amount of benefits. Government Pensions also affect what you can draw on your spouse's record. That is called the Government Pension Offset, rather than the Windfall Elimination Provision. But it works similar. I don't have it all worked out right now, but I am working on it. Here are the exceptions to the Windfall Elimination Provision: (if you can show one of them applies in your case, you could probably stop the offset they are taking out of your payments): The Windfall Elimination Provision does not apply if: • You are a federal worker first hired after December 31, 1983; • You were employed on December 31, 1983, by a nonprofit organization that did not withhold Social Security taxes from your pay at first, but then began withholding Social Security taxes from your pay; • Your only pension is based on railroad employment; • The only work you did where you did not pay Social Security taxes was before 1957; or • You have 30 or more years of substantial earnings under Social Security. Here is a brochure on the Windfall Elimination Provision http://www.ssa.gov/pubs/EN-05-10045.pdf Also, were you paying into both SS and Government Pension when you retired? Some government jobs pay into both. For awhile people were able to avoid the offset by changing to a job that paid into both for the last few days they worked. But then they changed the rules to where you had to work a job that paid into both for at least the last five years of your employment...or something like that. I don't have the exact facts on it right now - but I remember reading about it.

Hollis, Do you know when you last had insured status? What you would need to do is see if you could prove that you were disabled (under SS standards) at a time you still had insured status. Part of that is based on your past occupational history. SS has different rules for different age groups. Once you pass age 50, proving disability is easier. There are different standards for approaching advanced age (50 or older), advanced age (55 or older) and approaching retirement age (60 or older). For older claimants, you mostly have to prove you cannot do the type of work you used to do. (Younger workers also have to show that they can't do any other types of work, and that they can't be trained to do other types of work.) As far as income, unearned income does not affect Social Security Disability. Earned income does. If they told you that you had too much income, that was probably for SSI, which is different than SSDI. SSI is a needs based program. But if you are disabled, and do not have insured status with SSDI, they will check to see if your income and resources qualify you for SSI. They do count most all of your income and resources for that. They even count in-kind support (for instance, if you are living with someone else and being provided food / housing). So they don't base it on taxable income. They base it on the total of countable income and resources. So it looks like you don' t qualify for SSI. As far as SSD, you would have to show: 1. You are disabled under SS standards - (being older you would most likely have to show you are unable to do the work you are trained to do). 2. You were disabled under SS standards while you still had insured status. So you would have to show that your hearing loss, your PTSD, and any non-service connected disabilities you have would prevent you from doing the work you have always done - and that those disabilities were such that they would have prevented you from doing that type of work when you still had insured status. Have you considered talking to an Social Security lawyer, and seeing if they could help?

Another important thing to keep in mind with SS is to make sure they let you apply. They seem to like to make a determination as to whether you are eligible before you apply. And if they won't let you apply (based on their determination that you aren't eligible) then, if you later apply, it is hard to go back to the initial date because you didn't actually apply back then. There is no such thing as not being eligible to apply. Anyone can apply. And they should let you apply before they make a decision that you are not eligible. I know it saves them a lot of time processing claims for people who are not entitled, but they should still let people apply. I ran into a problem trying to apply for mother's benefits. You can't apply for those online. You have to apply at the SS office. But when I went to apply, they let my son apply, but wouldn't let me apply, because they said I wasn't eligible. When I received a notice that I was not eligible for anything but the lump sum death benefit, I appealed that decision - and said I had tried to apply for mother's benefits and was not allowed to apply, and that I wanted the opportunity to be allowed to apply for benefits before a decision was made that I was not entitled to them. They let me apply after that (but denied me two days later). And that ended up getting me tagged on the SS system, which made my whole claim difficult because no one wanted to help me because I was labeled on the system as a trouble maker. They let me apply, But they didn't file the appeal because as Mr. S&^%* (guy who labeled me in the system) informed me, I wasn't allowed to appeal - because he said a decision had not been made on my claim. I showed him that a decision HAD been made on my claim. I was informed I was not eligible for anything but the death benefit on my husband's record. I appealed THAT decision. He swore that decision ONLY covered lump sum death benefits, and since I got the lump sum death benefit, I couldn't appeal. Ironically, when I appealed the decision that was made on the mother's benefit application, I received a letter from Social Security that said my appeal was not timely because I was notified on ___ that I was not entitled to any other benefits, and I did not appeal that decision. That was total BS, as I had the right to appeal the most recent decision that had been made on my claim, regardless if I had appealed prior decisions. But they tried to say I was notified on ___ (the decision I first appealed, that the worker refused to file) and that the most recent decision was merely reiterating the first decision. Uh.. no.. the most recent decision was a new decision that was made after I was finally allowed to actually apply for the specific benefit (mother's benefits). So one SS worker said I couldn't appeal (though I did appeal) and another SS worker said that since I didn't appeal (at the time the other worker said I couldn't) that I lost my right to appeal subsequent decisions on that claim. Again BS. But they kept things tied up forever. I didn't realize at that time, but you can't appeal a decision that your appeal was not timely. The local office decides if your appeal is timely and you can't appeal that. So I thought they had me. The only thing I could do was to keep submitting evidence to try to get them (the same people who were playing games with me) to reopen my claim. When I applied to a hearing, I received a notice that I was not entitled to a hearing, because I had not received a reconsideration (I only got a letter telling me my appeal was not timely). But I found a section of law that said you could ask the Appeals Council to reopen your claim if there was an "error on the face of the evidence." I wrote to the Appeals Council and told them I realized I had no right to appeal the decision that my appeal was not timely, but asking them to reopen my claim as there was an error on the face of the evidence, which denied me my right to due process on my claim. Though I provided evidence that I had actually appealed the initial decision, I also pointed out that even if I had not appealed it - I still had the right to appeal the subsequent decision made after I filed an application. I stated there was an error on the face of the evidence if SS determined that in order to appeal a decision, I had to file an appeal before the decision was even made. The Appeals Council reopened my claim, and sent it back for the RO to do a Reconsideration, which then entitled me to receive a hearing. I know it is a long story - but an important point is: You should be allowed to apply even if they think you won't be eligible. You should be allowed to appeal even if they think you have no right to appeal. They might deny your application. They might decide against your appeal. But at least the application and appeal are in the system, which entitles you to due process.

Hollis, You need a certain number of quarters in the past 10 years to be able to claim disability. Basically, you need to have worked enough to pay into SS for half of those quarters. As they update, the older quarters drop off. The longer you are out of work, and those older quarters drop off, you eventually run out of insured status. Insured status isn't based on work. It is based on paying into SS. So if you worked jobs that did not pay into SS that affects the mix. But IMPORTANT TO NOTE - if you can show you were disabled while you still had insured status - you are eligible. But for some reason SS tries to go by the day you APPLY to figure out insured status. If you haven't worked five years from the day you applied, they tend to tell people they are not eligible because they don't have insured status. But say you still had insured status last year, if you can show you were disabled last year, you are still eligible because you became disabled while you still had insured status. This affects a lot of people because they aren't working because they are disabled, but then when they finally get bad enough they try to apply for SSD, they haven't worked in the past X number of years, and they are told they are no longer insured. Case in point - My husband had terminal lung cancer. We never even THOUGHT of him applying for SSD. And in fact, he got a job teaching part time. But he got to the point where they wouldn't let him teach anymore until he finished his Thesis. (He was allowed to teach under a provisional term). And so that dropped his income. I started looking to see about deferring payments on his student loan due to disability and the documents said that they went by the same standards as Social Security to determine if you were disabled. So I looked up their standards on cancer. It said that cancer that had invaded the mediastinum was considered disabled. My husband's cancer was declared inoperable in 2004 because it has attached to the aorta. I told him, OMG! You don't even have to prove you are unable to work - because your diagnosis is already one that they have determined is disabling. BUT I started counting up his work quarters. He retired from the military in 1998. He was a student after that. And though he had a graduate assistantship and then a part time teaching position - neither of those paid into Social Security. So it was somewhere around May 2006, and it looked like he had run out of insured status in December 2005. At first I thought - dang... it is too late. But then I thought - wait a minute - He WAS disabled in December 2005 - so he was disabled when he still had insured status. But - when we went to the Social Security office, the lady was actually nice, and seemed very sorry that she had to give him bad news - but she went from the day he was applying and told him she was sorry but he wasn't eligible because he was no longer insured. I asked if they could go back to last year - as he still had insured status then - and he had the cancer then. Her eyes lit up and she said Yes! So she started letting him apply - but she started using December as the date of "onset" because that was when he stopped working. I asked if she could go back to August, since that was when his employment income dropped below the substantial gainful amount. So she agreed to go back to August. So they approved his claim in a few weeks and went back to August 2005, as that was the date his employment income dropped below substantial gainful. But going back: 1. Made him eligible. 2. Made him able to use those months starting in August as part of his 6 month waiting period and so he got benefits for more months. SSD can go back one year from the day you apply as far as payment of benefits. But they can go back longer in proving disability. So say you applied today, but lost insured status in 2011. It won't be easy, but if you can prove you became disabled in 2011, and they granted benefits, they would go back one year - deduct your waiting period, and pay you the remaining months. BUT when you go to the SS office, they usually just count back from that day. So you need to remind them "I didn't become disabled today. I became disabled on X." It is kind of sad that they don't think of that when you apply. Had I not looked up the information myself, we would have left the SS office thinking my husband was not eligible because he waited too long to apply.

Halos! Congrats on the good work! That was a VERY fast payment. Sometimes Social Security can move fast. My husband got his payment within 3 weeks of applying. But he had a TERI claim (terminal illness claim) which they now process faster. My father died August 27, 2010. And my mother's September payment was already increased to the widow's amount, rather than the spouses amount, without her even filing to request that. I guess when the funeral home notified SS of my father's death, they immediately adjusted my mother's payment since she was already drawing on his record.

"we need medical or lay evindence to show a worsening or increase in severity and the effect that worsening or increase has on your ability to work." Looks like it is asking for 2 things: 1. Medical or lay evidence of an increase in severity. 2. The effect that worsening or increase has on your ability to work. The last hearing test would be medical evidence of an increase in severity. I think you could write a statement about how the increase in severity affects your ability to get a job, do your job (if you had one), etc. A statement from a former co-worker could also be good, if you can get one. "are they likely to say that is hasn't affected my ability to work?" They are likely to say anything. But 4.85 - Evaluation of Hearing Impairment doesn't say anything about the ability to work having anything to do with the rating of hearing impairments. It seems pretty clear - and is based on the hearing test results. So I don't think you would even have to show how it affects your ability to work to get the rating the hearing test shows you should have.

I now realized I testified incorrectly. I know my husband was in Guam right around the very end of the Vietnam War. And the VSO asked if he was there to support the Vietnam efforts. Heck! I don't know. He was there to be an electrician on the Air Force Base. But anyway, he said he was probably there to support the Vietnam efforts. So dang it if he didn't ask me if my husband was there to support the Vietnam efforts, or if my husband told me he was there to support the Vietnam efforts - and I answered Yes. Now I feel horrible about testifying to that because I didn't know that to be a fact. I know they surely wouldn't grant SC under boots on the ground based on a widow's testimony of what he husband was doing in Guam (especially a widow that married a veteran after he retired). Either he had boots on the ground, or he didn't have boots on the ground. The records would show that. They surely aren't going to take my word for it anyway. But I still feel bad that I let myself get pulled into testifying to something I didn't know to be true. Of course, as my husband entered the military in 1970, I would assume that anyone in the military at that time was either directly or indirectly supporting the Vietnam War efforts. But for the VSO to ask the question, I would imagine he meant directly supporting the efforts. I don't know. On second thought - I have no idea why the VSO even asked me that. Again, the records will show where my husband was and what he was doing there. Maybe he just needed to think of some questions to ask me -- and he didn't want to bring up the issues I was presenting. He (the VSO) asked me another strange question. He asked if it was true my husband started smoking before he joined the military -- or something along those lines. I didn't get pulled into testifying to that. That question threw me for a loop. I said that I didn't know that for a fact; that I wasn't sure exactly when my husband started smoking. I know when your representative asks you a "is it true...?" type questions, they are trying to lead you into answering the way they want you to. Again - I have no idea why he would even ask me that.

Wnchstr, You should be eligible for concurrent receipt. I had a friend whose husband got a letter like that, and the numbers looked odd - (you get this and you don't get that) been when all was said and done, the numbers added up to where he got both. But they just have to explain what numbers come from where in a very confusing way.

Vet 12, I wish I would have held myself together enough to just gone ahead and presented what I had to present, I wasn't sure what the judge's take on that would be. I didn't think it would be good protocol to defy your VSO in a hearing. I guess when the judge asked if I had anything else to present, I should have asked the VSO, right in the hearing room, whether I should present what I had brought. He probably wouldn't have told me no in front of the judge. But then it wouldn't look like I was disregarding my VSO in presenting my claim.

So...if I decide to just let the VSO do whatever they do - can I still submit evidence directly to the Board? Or am I supposed to sent it to the VSO and let them decide what to send?

On a brighter note, I have been able to look up some of my judge's decisions. He is very thorough (and that is one thing my VSO said when I was leaving.) So I am glad I got a strong IMO that gave lots of details. I don't think a somewhat vague more likely than not opinion would fly with this judge, unless he was already convinced and just needed someone to say that in order to grant the claim. And though he has denied a lot of claims, he has also granted claims on the same "theory" that we have submitted - that even though cancer was diagnosed after service, it was present in service....especially if it was diagnosed shortly after service - AND the veteran / widow provided an IMO. Many of the widow claims that were denied were from widows of veterans who had been out of service for a long time who were trying to connect SC issues to the the condition that caused their death. But most of these had no IMOs, or just very weak ones. It looks like even if they had a very general IMO where the doctor just gave a brief statement, he contacted the widow or doctor to request more details before deciding the claim. Most often, they did not provide additional details. I understand he is a thorough judge. But I do believe he is a fair judge.

Berta, We had already explored the Guam AO issue several years ago. In fact, I emailed back and forth with Van Sanderson and a few other vets about the issue. A couple of the BVA decisions have been promising, but they haven't set a precedence on the issue at all. I don't remember the name of the Congressman that kept working to get information about Guam declassified - which would help a lot. We did mention possible herbicide exposure in at least one of our appeals. I wanted to make sure it was on the record that we at least alleged herbicide exposure, in the event the military decides to admit that AO was used on Guam. It might not hurt to get it on the record again. I did find an interesting article about asbestos and pcbs on Andersen AFB last night. http://www.andersen.af.mil/news/story_print.asp?id=123339500 "3/11/2013 - ANDERSEN AIR FORCE BASE, Guam -- The 36th Civil Engineer Squadron Environmental Flight is currently working on containing contamination to protect the environment at Site 14 on Andersen Air Force Base. The site, located in the southeastern corner of the base, was contaminated with harmful substances such as polychlorinated biphenyl and asbestos since the 1970s when it was used for a construction waste site. The cleanup effort is estimated to be completed later this month." This might help support our claim that my husband was exposed to asbestos in Guam in the early 70's.

Reddit - Good luck with your hearing! I am probably not a good person to advise you on what to discuss. LOL I would probably take a synopsis of what you think your strongest evidence is. I wish I would have kept my act together enough to convince my VSO to help me present the arguments I already had, and then ask to additional time to submit more evidence.

jbasser, I called an attorney last year. I was just bumming out about getting an IMO and thought I would be willing to pay an attorney to just take over the claim and do that for me. The attorney I called said if my husband was not in Vietnam or did not have his cancer diagnosed in service, I didn't have a claim. Personally, from reading the BVA decisions, I think it is easier to convince a judge that you have a case than it is to convince a VSO or attorney that you have one. I WAS encouraged when the judge asked if I got an IMO, and he seemed to perk up when I said I did. He asked what they said. But I faltered in explaining it because I was trying not to aggravate the eye rolling VSO who warned me not to talk like an expert. So I just fumbled around about it. But the judge did tell me there are three prongs to proving a case - A disability, incurrence in or aggravation by service, and a nexus. The judge put his hand right on my IMOs and said "These might provide the nexus." The judge looked over at the VSO, but the VSO didn't say anything. I think what we probably should have done was spent the time that morning with the VSO getting familiar with the arguments I had with me to present - so he could help me present THOSE to the judge - and then asked to hold the record open for 90 days to develop the case for more evidence. Despite him telling me that the judge doesn't even have to accept my "theories" I think the judge has to take my IMOs into consideration. Since I have the IMOs it seems like he would either have to grant the claim, remand it, or get another expert opinion. But he would need to find flaws in my IMOs before seeking an expert opinion or further development. I don't think he could just reject my IMOs as (in the VSO terms) "theories by someone who didn't see your husband" and deny the claim. And any expert opinion the board would seek would also be a "theory by someone who didn't see my husband." Granted, if you are claiming for a disability in which a physical exam would provide useful information, than an opinion by a doctor who examined you would be stronger than an opinion by someone who did not. But I don't think a physical exam would be necessary for an expert to offer an opinion about when someone's cancer started. And one of my doctors actually pointed out that he did bench research working with cell lines and analyzing cells survival curves and growth rates. I think that would pack more of punch than physically seeing my husband for the type of opinion that it was.

71M10, I actually thought of that. I thought of just writing the BVA and telling them I want to revoke the VSO POA I signed and decide the case on its merits. But I wasn't sure if that would look worse than just letting it sit. The judge did thank the VSO for signing on at the last minute in order to "help" a widow. And I guess it was a good thing he asked to hold the case open for 90 days to give him time to submit more evidence. And I really don't mind him trying to explore other avenues to entitlement. But I didn't like him just dismissing mine and treating me like an idiot. And I feel like we wasted a whole hearing, because he didn't want to argue, or have me argue, inservice onset or asbestos exposure -- the two main things we have developed in the claim. I did feel like I had enough evidence for the claim to be granted on direct connection, and at least a remand on the asbestos exposure (secondary connection). I honestly don't think he will get anywhere with the boots on the ground theory. We already explored that to see if any of the places my husband served would be presumptive AO. The VSO asked me. If you can go two blocks to get somewhere or three blocks to get somewhere - which would you do? I said two blocks. HE said the boots on the ground it the two blocks. I agree it WOULD be two blocks IF my husband served anywhere that had presumptive AO. But we have already gone three blocks. We are at the hearing, not the beginning of the claim. It was so odd that he was dismissing the two strongest parts of the claim - and thinking of trying to build something from the contributing causes of death listed on the death certificate. I do understand that can sometimes be important. But I think all the contributing causes link to my husband's cancer. He wasn't real supportive of the asbestos issue. He said my husband or the buddies who provided buddy statements wouldn't know if they were exposed to asbestos. For gosh sakes - one of the buddy statements specifically stated that shortly after my husband left the field (stopped being an electrician) they all found out that many of the buildings they had been working in had asbestos, they had to get asbestos safety training, and chest x-rays. We submitted evidence that the OSHA asbestos standards did not apply to the construction trades until 1986 and the initial Air Force standard for asbestos management was published in 1998. He said that the doctor (the one I had spoken to) said the standard thing someone has when exposed to asbestos is pleural plaques. I told him my husband had a diagnosis of interstitial lung disease. He asked when it was diagnosed. I said 2 years after retirement. So he wasn't impressed.

Thanks for the support! I hate feeling that stupid, and am frustrated that I let him get me so rattled that I ended up so nervous that I came across as a complete idiot during the hearing. I left the hearing just wanting to go in some corner and cry for about an hour -- but I had to regroup and keep focused to navigate my way across Washington DC on the metro and get checked out of the hotel, and navigate to the airport to catch my flight, and then catch a connecting flight - that it took most of my focus. I come from a land where people actually drive where they want to go.

I went to my hearing in Washington armed with my two IMOs and my arguments. I actually thought my IMOs would get service connection for my husband's lung cancer. I also contacted experts who specialize in industrial medicine or toxicology to see about getting an opinion if it was more likely than not asbestos exposure had contributed to my husband's cancer. I had several doctors respond - but one said she worked as a consultant with a VSO - and that she could help me if I signed PO to them. I never got an answer from the BVA as to whether I would be allowed to appoint a VSO, so I figured if I didn't get approved on inservice onset, there should be enough to at least get a remand on the asbestos issue. That would give me time to see if an IMO on the asbestos issue was even necessary. The guy at the desk was very nice, but he asked why I didn't have a VSO, and I told him - and he called that VSO and had them bring a paper down for me to sign. So I signed to have the represent me. I don't know if I made a big mistake -- but I left the hearing feeling horrible. And I am not even sure how to work with a VSO at this point. The judge was very nice, by the way. But I didn't get along too well with the VSO. He didn't seem to have much interest in anything I brought to the hearing, what my arguments were, etc. I finally got him to take a look at the IMOs, but I am not sure how well he read them. He kind of dismissed them as "theories written by people who had not seen my husband." The VSO thought it would be better to try to show boots on the ground in Vietnam. I told him my husband didn't have boots on the ground. But he said you don't know what the records would show. I think my husband would have known whether he was in Vietnam or not. It doesn't seem like something a person would forget. He was in Guam at that time - but the AO stuff on Guam is not presumptive. While I appreciate the fact he wanted to make sure everything was covered, by checking out boots on the ground, and other possible connections, I don't understand why he kept dismissing the two claims we have presented all along - inservice incurrence, and / or related to asbestos exposure. He also wanted to see about pursuing contributing factors listed on the death certificate - Respiratory failure, pancreatic mass, and jaundice. I don't actually see how those would apply because they stemmed from his lung cancer. He also said my husband wouldn't know whether he had been exposed to asbestos or not. Anyway, I got totally rattled and upset and was crying right before the hearing. The VSO did say he would let my submit my two IMOs, but that was all. He didn't want me to submit the article one of the doctor's sent me to submit. He kept telling me the judge might not accept my "theories." I don't know why he kept referring to the IMOs as theories. They were opinions of competent medical professionals. Then he finally let me try to explain the "theories" -- but I couldn't quite get him to understand. I read him the part of the doctor's report that explained that they measure tumor growth rate based on a tumor's "doubling time" or how long it takes a tumor to double in size. It has to double a certain number of times to reach 1 cm, and a certain number of times to reach 3 cm. (the size of my husband's). So he says "Is there evidence in the record that your husband's tumor was one of these double time tumors? I tried to explain that there is no such thing as a doubling time tumor. Doubling time is how they measure tumor growth. He rolled his eyes. So I tried to explain it again, and THOUGHT I was getting the point across. Then he asked what my training was. I told him a teacher. He told me I had to watch trying to sound like an expert. He said I couldn't sound like an expert. I didn't plan on trying to tell the judge I was an expert. I hadplanned on telling the judge what the experts had said (backed by hard copies of what they said). Anyway, we weren't getting along well. I agreed to let him ask the judge to hold the record open. And I don't mind him exploring other issues. But I worked so hard to put together this claim and he acted like my IMOs (theories) didn't even matter. So right before we went over to the hearing, his assistant reminded me that I couldn't talk like an "expert." So we were going in the hall, and I asked the VSO what to do. I said, am I not supposed to answer questions about the cancer? I am not clear on exactly what I am supposed to say or do. And he shot me a look and told me he wouldn't answer that in the hall. So off we went to the hearing room, and I was totally confused. While we were waiting for the judge the VSO asked me "Is there evidence that your husband's cancer was 1 cm when it started?" I said it wasn't 1 cm when it started. He rolled his eyes again. I know I was aggravating him. But it wasn't 1 cm. I told him it started as a single cell and grew. It eventually, over time, grew to 3 cm. Then he asked me as part of the questioning what types of jobs my husband had in the military. I said electrician and First Sergeant. That earned me another eye roll. He told me First Sergeant was a rank not a job. So he asked me AGAIN and gave me another chance to get it "right." What was your husband's first job in the military?" I said "Electrician." Then he asked if my husband had any other jobs. I said First Sergeant." I explained that was his job title. I wish I would have had his DD214 with me to show him 8FOOO - First Segeant - 15 years. Anyway, I was so rattled and shook up, I ended up looking totally stupid the whole dang time. I would have to say the judge was very nice and very respectful. The judge even asked me about my request for records for an IMO. He asked if I had received them. I told him I was trying to get a copy of my husband's discharge physical before I got an IMO because I wanted to make sure that was given to the doctor if it was available before they doctor issued an opinion. But I told him the VA couldn't find the discharge physical and so I went ahead and got the IMOs. He picked up the papers and asked if those were the IMOs and I said yes. He asked what the doctors said. Then I got rattled again. I sure didn't want the VSO rolling his eyes at me again. And I wasn't quite sure how to answer. I told him they said it started in the service. And I told him one of the doctors had called a couple of times to discuss it. The judge seemed positive about that. He even told me about the three prongs that need to be met and said the IMOs might provide the nexus. Thank God somebody appreciated the IMOs! And somebody thought they might provide the nexus! (I guess if you have to pick between the judge or the VSO supporting your claim, it is better to pick the judge). Anyway -- my hearing didn't go all that well. I have no idea what to do to work with the VSO. I end up feeling like an idiot when I try to talk to him. I hope that if the judge sees an nexus, he will still rule in my favor even if the VSO doesn't want to argue the point of in-service incurrence. But he wants to take my claim in a whole different direction now. And I don't know what to do.

I agree it would be better if the doctor would support the opinion with some rationale. If he will, that would be nice. If not, and that is the best letter he can give you, you can try to find some articles that show his opinion was based on sound medical principles. That is not near as good as him reporting the principles, but it is better than nothing.

My husband had Tri-Care and he didn't have much luck getting opinion letters either. His Pulmonologist worked on base. He is the doctor who first told my husband that his cancer started a long time before he retired. He later told us he would write a letter. In fact, he said he would be happy to do so. Then he called a couple of days later and said the base attorney said they aren't allowed to write letters for VA claims. The oncologist also said they weren't allowed to write opinions. He said the VA has their own doctors and makes their own decisions.

Berta, Here is an interesting claim where the veteran was stationed in barracks in 1943 that later had asbestos removed. Though the veteran also had a long smoking history, and years of post-service employment being exposed to asbestos, SC was granted for his death, based on information in M21-1MR (which states that exposure can be brief) and the fact that if it is not possible to separate the effects of a non-service connection condition from a service connected condition, the entire effect is granted to the service connection condition. Though the VA examiners opined that his cancer was caused by his years of occupational exposure and smoking, and stated he wasn't exposed to asbestos in the service - the BVA remanded the claim when there was evidence that asbestos had later been removed from the barracks he lived in in 1943, and so they considered the prior opinions non-probative. Then the VA examiner opined that the asbestos the veteran was exposed to in 1943 was not disturbed and in good repair. The BVA rejected that argument in that though there was no evidence the asbestos was in poor repair, there was also no evidence that it was in good repair - and so the examiner made an assumption. The BVA decided that though the veteran had much post-service occupational exposure, that the in-service exposure could not be ruled out. And they granted the claim. http://www.va.gov/vetapp12/Files3/1217060.txt (I hope I get that judge!) Now that I think about it, it looks like it is almost easier to get SC for asbestos exposure, if you smoke, if you have post-service occupational exposure. If you only have in-service exposure, then the VA examiners build their opinion on the claim that since smoking causes 90% of lung cancer, the effect of asbestos is less than 50% (thus, less likely than not). But if you have post-service exposure - then they build a claim that the cancer was more likely caused by the combination of smoking and the post-service asbestos exposure since the post-service exposure was more substantial. Once they have created an opinion that asbestos and exposure and smoking combined caused the cancer - it seems easier to convince the VA that the in-service asbestos exposure can't be reasonably separated from the post-service exposure, than it is to argue that asbestos exposure contributed to the cancer, when the VA examiner has said it did not. I think they use faulty math in those arguments though. The veteran should not have to prove that asbestos was 50% responsible for their cancer. They should only have to prove that it is more likely than not that it played SOME role, even if that role was less than 50%.

Thanks Carlie! I will try to find the rules. I was under the impression that I could not appoint a representative now, without the VAs approval and showing good cause, as my time period had passed. I almost appointed a Rep within the time period, but didn't find one I wanted. One told me I didn't have a claim, one told me they could guide me but I could represent myself, and another told me I couldn't ask for a postponement because that would delay my claim for several years. I really wanted to, and did, postpone my hearing. I didn't have an IMO yet because I was still trying to get a copy of my husband's discharge physical from the VA. I had been trying to get it for years, but was not successful. But I thought sure as I pay for IMOs, his discharge physical will suddenly appear in his file, and there would be something in there the Board would say the IMOs didn't consider, and lessen their probative value. So I didn't want to get an IMO until I got a copy of the physical or written confirmation that it could not be found. And I didn't want to go to the hearing without an IMO. I don't know why the VSO told me a request for postponement would mean I would wait three more years for another hearing. I search BVA decisions, and it looked like they most often rescheduled in a few months. And that is what happened in my case. They rescheduled a few months later. And I requested another postponement based on the fact that I had still not heard back from the Privacy Officer on my request for my husband's discharge physical. So they rescheduled and then I got a letter that the physical is not in his file. I just started thinking of getting a VSO again when the one doctor I wrote about writing an opinion on asbestos said she was a consultant for a VSO and could help me if I appointed them. I called them and they said to file the form with them and the VA, and someone would be there to represent me at the hearing. I did not want to file the form until I found out if I could appoint a VSO at this point. I don't want to get there and not even know if the VSO would be assisting me or not. So I asked the VSO, and she gave me a number to call at the BVA - but they didn't return my call. At this point I have been working so hard on my appeal, I haven't taken the time to follow up. And actually, I won't need the asbestos medical opinion if I am granted the claim on in-service incurrence. So I was thinking of asking the judge if I can appoint a VSO if the claim is remanded. I don't think they would deny the claim on the asbestos exposure issue yet. I think they would remand it. But I am very hopeful that the claim will be granted on the more likely than not that his cancer started in service point.

So happy for you Shyne! ...except for the fact that you had to hurt that bad from all that stuff....ouch!

Berta - On the Interstitial Fibrosis issue - the VA's own manuals list Interstitial Fibrosis as the MOST COMMON condition caused by asbestos exposure. (Yet I have read quite a few decisions where the VA docs will say the veteran's condition wasn't caused by asbestos because they didn't have asbestosis) Likewise, the VA's own manuals say "Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer." (Yet I have read opinions that rule out asbestos as a cause of cancer because the person smoked -- and 90% of lung cancers are caused by smoking..therefore it is less likely than not, etc. etc. etc.) To me the words INCREASED RISK suggest "at least as likely than not" But once they get into the argument of which factor increased the risk MORE, they can guide the cause to smoking. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C 9. Service Connection for Disabilities Resulting From Exposure to Asbestos b. General Effects of Asbestos Exposure Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Inhalation of asbestos fibers can produce fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis tumors pleural effusions and fibrosis pleural plaques mesotheliomas of pleura and peritoneum cancers of the lung bronchus gastrointestinal tract larynx pharynx, and urogenital system, except the prostate. 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. Specific effects of exposure to asbestos include · lung cancer that - originates in the lung parenchyma rather than the bronchi, and - eventually develops in about 50 percent of persons with asbestosis · gastrointestinal cancer that develops in 10 percent of persons with asbestosis · urogenital cancer that develops in 10 percent of persons with asbestosis, and · mesothelioma that develops in 17 percent of persons with asbestosis. · Disease-causing exposure to asbestos may be - brief, and/or - indirect. Notes: · Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer. · Mesotheliomas are not associated with cigarette smoking.