[Check Your Vulnerable Six!]

We also live in Michigan. Feb 18 2011 my husband was seen for IHD C&P at the clinic in Clare and was seen on March 8 2011 for hearing C&P in Saginaw at Lutz VAMC. So all C&P exams since Jan 2011 are NOT done in Detroit. Just a bit of info.

Greetings all:

Been a while since I was on.

Two weeks ago I received a letter to inform me somone would be calling me to schedule an Appeal C&P physical, with the Detroit VA Medical Center (didn't use the Dingell name). Well no one called, didn't suprise me much, but still no letter. So not wanting to get a letter in the mail telling me my appeal was decided and denied because I didn't show up for my physical. I looked up the John Dingell veterans medical center in Detroit and gave them a call. Followed the menu instruction and got a human being instead of a computer who immediately starts giving me attitude for not calling the automated extension. Informed him I followed the prompts for the automated system and got him. He softens a bit and then tells me he will check. Give him the name and last four, asks for birthdate then address, asks if I have had another address previous, gave him previous address from 1987. Says he cant release any informaiton since I cant confirm address. I tell him the address I gave him is the address VA has been using for my correspondence and is the address that Battle Creek VA shipms my medications to and was the address VA sent a letter to telling me they would call me to schedule an appointment with the Detroit medical center. He indicates that doesn't make a difference I have to come down to the Detroit hospital with an ID card to update my address information before they can release any information over the phone. He tells me that my address information there has to be correct since they are the closest VA Hospital to me. I inform him that the Lutz hospital in Saginaw is the closest to me, followed by Battle Creek, then Ann Arbor and that the only VA hospital in the state of michigan farther from me than Detoit is Iron Mountain in the Upper Peninsula. He then says but none of those do Compensation and Pension Physicals. I inform him I have had 4 C&P Physicals at Battle Creek. He says thats the old system all C&P physicals since January 2011 are conducted in Detroit. I indicate it would be nice if they would have told us about that change. We go over the fact that the letter telling me about an upcomming schedule was mailed to the address I gave him that he says is wrong. He says it doesn't matter that address is what is on file with VARO Detroit, they are a seperate system. He also indicates they do not call to schedule appointments they receive the request for the physical and then book the appointment and mail the notice. But they mail the notice with the address in thier system not the VARO's. He then says maybe you inverted some numbers (this indicates to me that he recognized the address I gave) so I give him the numbers again(for old adress from 87) he asks city and zip then says that is the address they have, but you havent given us any home phone number or work number. You havent updated this address. the conversation goes on, then he lets it slip I have an appointment on June 24th(he was trying not to give that information to me). Then he tells me he told me earlier that I had an appointment January 24th, I just wasn't paying attention. I point out he said January, "sorry I ment June he says".

Long and short of it for Vets in Michigan, If you have never been to John R Dingell Medical Center you better make sure they have your proper address because they are scheduling C&Ps there and they won't use the addresses from other medical centers or the regional office for notifications. I think Im going to vist Senator Levins office since I am in town and voice my concerns(don't worry I'll get an appointment first).

Glad i'm a bit parinoid about VA.

Best regards,

[What Is The Issue To Be Decided]

thanks Berta. Does this mean they want me to file to reopen a claim for COPD

so they can now only pay benefits from when it was reopened?

[What Is The Issue To Be Decided]

Has VA received these 3 IMOs yet?

Yes they have all of them. I believe that is why in the BVA denial they state“….In this regard, to the extent that the clinical evidence indicates that the Veteran’s COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service, the Veteran is hereby advised at this juncture that as service connection was previously denied in a prior final rating decision and as he has expressly stated that the present claim on appeal is for VA compensation for a respiratory disability other than COPD/emphysema, he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 CFR 3.156 (2010).”

A claim in the system since 1994 is troubling to me.I assume you mean this same claim has been continuously prosecuted (with no lapse at all in appellate status) since 1994.

No that claim was denied and never appealed. This claim began in Dec 2005.

John -you always have a correct and profound take on this stuff- I sure agree with you.

When I proved SC death in 2009, the VARO fought me for almost a year on an FTCA offset refund that was established by VA case law and the FTCA regs (and even the BVA in a past denial I had many years ago)said was Mine- and not theirs. You would think I was asking for the VARO to send me their personal money they had put into college funds for their kids!

You are right. No one-not even the regional counsel up here-wanted to take the responsibility to send me my money.I couldnt believe how he got so dumb on FTCA law.

He was the same RC that got them to CUE themselves when they withheld years of DIC to the tune of 40 thousand. He ordered them to pay me that but I guess he was unwilling to order them to pay me the offset refund (FTCA).

Very few offsets to FTCA are ever refunded- I might still be the only case.

I know I gripe about this here a lot.It still pisses me off and I even had to argue with the General Counsel lawyers over this until finally some honcho read my etters to them with the FTCA regs re: offsets and Bingo-the VARO was ordered to shell out the dough.

I dont know if it is because they think I must be some defenseless widow or the fact I had no lawyer for the FTCA matter-

so maybe they thought I would buy what they were selling when they argued against my right to this money- in any event-

John is right-

the recent VA employee Bonus amounts are at VAWatchdogtoday this AM and it shows how VA pays bonuses yet many VA employees take no responsibility over awards that might even be higher then the bonuses they get.I think they are afraid to sign off on many awards.

Compensation sure isn't a Bonus to any of you- it is due to your sacrifice.You all justify their jobs.They need to remember that.

[What Is The Issue To Be Decided]

I want to thank everyone for your input. I am in the process of hiring a lawyer. It seems the VA has everyone confused on this one. Berta I do have 3 very strong IMO's connecting COPD to begining while in service and 2 strong IMO's connecting Diesel exhaust to aggravating his COPD. I had assumed that since the VA started referring to the claim as for lung disorder in 2006 that is what we have been working to prove. The asthma claim has been incorporated into his diagnosis of COPD with asthmatic component. I will keep you posted as to the outcome.

[What Is The Issue To Be Decided]

I wanted to pose this question to all you wonderful people out there.

First a little back ground

My husband initially filed a claim for chronic asthma in Dec. 2005 after being denied for emphysema in1994.

6/06/2006 RATING DECISION the medical description was Chronic Asthma.

2/03/2007 SOC ISSUE was service connection of lung disorder. In the reasons and bases it states “Your report of asthma in service is not a medical finding. Your bronchitis in service was acute. You do not now have chronic bronchitis. Based on the VA examiner’s finding, service connection for a lung disorder is not shown….”

05/17/07 Filed VA-9 On his VA9 he checked the box that states “I Want To Appeal All Of The Issues Listed On The Statement Of The Case And Any Supplemental Statements Of The Case That My Local Va Office Sent To Me.”

6/04/2007 SSOC ISSUE was service connection of lung disorder. In the reasons and bases it states “…the evidence does not show that the veteran’s current lung condition, chronic obstructive pulmonary disease was incurred in or aggravated by his military service…”

10/12/2007 SSOC ISSUE was service connection of lung disorder. In the reasons and bases it states “…chronic obstructive pulmonary disease is not caused by or a result of the veteran’s military service….no formal diagnosis of asthma by a medical care provider…..no documentation found of a diagnosis or treatment of bronchitis…..”

May 2009 The case was remanded to the AMC for developing additional evidence on “...you appeal for a respiratory disability, to include as due to asbestos exposure.”

9/29/2009 SSOC from AMC ISSUE Service connection for a respiratory disability, to include as due to asbestos exposure. In Reasons and bases “….we are unable to establish service connection for a respiratory disability. For the most part, the evidence of record indicates your emphysema is not related to your period of military service.”

Jan 2011 In the denial from the BVA the Board “defines the current issue on appeal as entitlement to service connection for respiratory disability other than COPD/emphysema to include chronic asthma and pulmonary disease due to asbestos exposure.” And goes on to state “….In this regard, to the extent that the clinical evidence indicates that the Veteran’s COPD/emphysema was aggravated by his alleged exposure to diesel exhaust fumes in service, the Veteran is hereby advised at this juncture that as service connection was previously denied in a prior final rating decision and as he has expressly stated that he present claim on appeal is for VA compensation for a respiratory disability other than COPD/emphysema, he may wish to pursue a claim for new and material evidence and apply to reopen his COPD/emphysema claim, per 38 CFR 3.156 (2010).”

The Va first referred to this claim when we filed the claim in Dec 2005 as Chronic Asthma and then in Feb 3 2007 on SOC referred to the claim as lung disorder. On 5/17/2007 we filed VA-9 and wanted to appeal all of the issues listed on the SOC and SSOC that were sent to me. Even the remand on 5/19/09 the Issue was entitlement to service connection for a respiratory disability, to include as due to asbestos exposure. The last time this claim was being referred to as Asthma was 2006 and now in 2011 on the BVA decision it was referred to as "respiratory disability other than COPD/emphysema to include chronic asthma and pulmonary disease due to asbestos exposure.”

The main question I have is when the VA started referring to this claim by names other than Chronic Asthma did that open a claim for all respiratory disabilities. Especially since this was done on the SOC prior to the VA-9 being filed?

Thanks for any help you can give me on this Issue.

[First Post]

Thanks Berta

You don't know how much you have helped me with my Husbands claim through your postings on hadit. Hopefully it will eventually add up to success. This is a reopened claim.

This case is in part what our last NOD was based on:

Citation Nr: 1012867

Decision Date: 04/06/10 Archive Date: 04/14/10

DOCKET NO. 05-32 636 ) DATE

On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines (excerpt)

With respect to tobacco-related disability, for claims filed after June 9, 1998, such as the present claim, Congress has prohibited the grant of service connection for disability due to the use of tobacco products during active service. 38 U.S.C.A. § 1103(a) (West 2002 and Supp. 2009). Thus, service connection for COPD which developed after service could not be service connected based on smoking in service. However, if COPD were already present upon service separation, such an association with smoking would not pertain to the service connection issue, because service connection for COPD could then be granted based on development of the disease in service, not after service. 38 C.F.R. § 3.303 (2009). Thus the examiner must address the likelihood that COPD developed in service.

We have 3 IMO's (one from Dr Bash because of your postings) stating that his COPD began in service even though it was not diagnosed until 1yr 1mth after service.

Being in the Navy for 20 years it sure is likely he was exposed to asbestos but the VA will want to check his MOS against the PIES list here under a search and then his IMOs must strongly support the asbestos exposure factor

He was exposed to asbestos but doesn't have asbestos-related diseases YET. He does have some spots that they are watching very carefully. He also has a buddy statment that my Husband's bunk was right beneath pipes with asbestos that was deteriorating.

If he claims diesel fuel exposure, that is the same case-the exact type of fuel he was exposed to, plus absolute proof of exposure long enough to cause disability,plus a very strong IMO would help there.

We have 2 IMO's relating diesel exposure to his current condition. 12+ years of his 24+ years of service was spent on ships and in ports where exposure to diesel exhaust was very high.

Do his SMRs reveal anything that shows any bronchial or asthma problems?

Yes he was seen quite abit for respiratory problems in the Navy. 2 of the IMO were based on review of his SMR. Also on his re-enlistment physical he complained of SOB and Chronic Cough,

which they are arguing doesn't prove anything because he wasn't treated at that time. He was using OTC inhalers for his symptoms and he has buddy statments to those facts.

We found this case to support his claim:

Citation Nr: 0916880

Decision Date: 05/06/09 Archive Date: 05/12/09

DOCKET NO. 06-29 267 ) DATE

On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico

Service connection may also be established with a showing of continuity of symptomatology in service and after discharge. This is only required where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). In Savage v. Gober, the United States Court of Appeals for Veterans Claims (Court) clarified this provision. The Court explained that if the chronicity provision of 38 C.F.R. § 3.303(b) is not applicable, as is the case here, service connection may still be available if (1) the condition is observed during service or any applicable presumption period; (2) continuity of symptomatology is demonstrated thereafter; and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 498 (1997).

WHat type of fuel was he exposed to?

We are claiming the following:

“I was exposed to fumes, dust, chemicals and air pollution of all kinds, including asbestos, welding fumes, dust from sanding metal surfaces, paint and solvent fumes, fumes from fuels for aircraft and other gear on carriers, pollution from accidents such as fires and plane crashes and pollution from the ports including diesel exhaust where these ships visited and were based. I was on shore duty at NAS Oceana, Virginia Beach VA (3OCT1959-18 SEP1963) where my office was located in the hanger where the planes were being serviced. I was exposed to exhaust, chemicals, dust, paint fumes, pollutant from sanding and welding, etc. I was also stationed in Washington DC at CNA/OSG where my job took me to the Pentagon twice daily via CNA shuttle bus. Arrival and departures were in the enclosed lower level of the Pentagon and the enclosed parking garage at CNA where I was exposed to diesel and gasoline fumes in high concentrations. Diesel exhaust is a complex mixture of some 450 compounds, over 40 of which have been identified as toxic air contaminants. “

There is alot of info on the internet about COPD and other lung problems associated with diesel exhaust, which I have used to support his claim.

If there is anything more you think I should do please let me know. Again thanks for all your help even if you didn't know how valuable your postings are to us.

[First Post]

Thanks for replying. My husband was a Yeoman. He served 12+ years on ships. The VA seems to want to blame his pulmonary disability entirely on his smoking history. Since my first post we have gotten another statment from his pulmonologist, saying that exposure to diesel exhaust and other particulate matter contributed to his problems. Another question I have is if his COPD began in service, which we have two doctors statments that it did, does it matter what caused or contributed to it.

[First Post]

I have been one of your “Lurkers” for awhile now. I am very grateful for all the help you have provided me to fight the VA. My husband was in the Navy from 1955-1980. He filed a claim for emphysema in 1994 and the claim was denied for lack of treatment records. We didn’t know a lot about the process at that time and assumed that if they wanted treatment records they must need them to grant his claim. He wasn’t being treated at that time although he continued to have symptoms. December 2003 he again filed and was denied, evidence was not new and material. July 31, 2004 Claim was considered reopened but still denied. Was not incurred in or aggravated by military service. December 2005 filed for chronic asthma, thinking that maybe a different diagnose would work. He has been diagnosed with COPD with an asthmatic component in form of emphysema. Jun 2006 again denied, was not incurred in or aggravated by military service. We filed NOD and had a De Novo Review. 5Feb2007 In the decision from the review the Issue was changed to lung disorder and was denied. They then stated we need evidence that his current lung disorder at least as likely as not began in service. We submitted a letter from his private physician stating “…might recognize the natural history of emphysema and the fact that it more than likely that during this patients 20+ years in the military, his disease was progressing.”

Jun 2007 again it was denied and they would ask the VAMC for an opinion. Oct 2007 SSOC they had their opinion and case was still denied. Went to BVA was remanded on May 2009. VA Got another C&P, we got an IMO and they then got another opinion. Just got another SSOC from AMC. Issue is now respiratory disability to include as due to asbestos exposure. Again denied. It will be going back to the BVA in a few weeks.

My question for the experts here is this still a reopened claim from 1994 and if so do we fall under the tobacco rules of 1998.