Post Service Diagnosis And Failure To Adjudicate

[free_spirit_etc]

Does anyone know if DESHOTEL (July 27, 2006) has over-ruled the below?

http://www.va.gov/vetapp04/files/0405741.txt

In February 2002, the veteran's representative argued that

service connection on a secondary basis for obesity and for

lower back arthritis was warranted. In August 2002 the

veteran's representative again suggested that the veteran's

obesity was secondary to service connected disability. The

Board notes in passing that while service connection on a

direct basis for low back disability has been denied on

numerous occasions, service connection on a secondary basis

under 38 C.F.R. § 3.310 for low back disability has never

been adjudicated by VA.

The United States Court of Appeals for Veterans Claims has

held that two issues are "inextricably intertwined" where

they are so closely tied together that a final decision

cannot be rendered unless both issues have been considered.

Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).

The Deshotel case states:

"Where the veteran files more than one claim with the RO at the same time, and the RO’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. We considered this exact issue in Andrews

F.3d 1278 (Fed. Cir. 2005), although the argument regarding a pending

claim was made there by the government rather than the veteran."

But it also states:

"Relying on Roberson, 251 F.3d at 1383-84, we held that where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3"

The reason I am asking is because this is similar to my husband's "two-pronged" claim for lung cancer:

1. That is was a DIRECT service connection - as it STARTED in the service.

2. That it was a SECONDARY connection in that is was related to his in-service asbestos exposure.

The RO denied the claim on asbestos exposure - and even CHANGED the claim -

The initial letter from the VA stated “We have received your claim for service connection for lung cancer, to include as secondary to asbestos exposure.”

The February 2003 denial letter stated Decision: “Service connection for adenocarcinoma, left lung, due to asbestos exposure is denied.” However, it did not address the issue of direct service connection.

But they NEVER addressed the DIRECT service connection issue, except to mention that his cancer was not diagnosed in Service nor within his presumptive period.

However: §3.303(d) clearly states “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.

And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

(His 3.2 cm tumor was discovered one year after the presumptive period).

So my questions are:

1. Does the 2004 BVA case above apply?

As the two issues were "inextricably intertwined" where

they are so closely tied together that a final decision

cannot be rendered unless both issues have been considered.

(I know a BVA case isn't a precedent - but the case THEY cite is)

3. Or does the July 2006 Deshotel case in Federal Court supercede that?

4. If the Deshotel case does supercede, since my husband requested the VA adjudicate his unajudicated claim for DIRECT Service connection PRIOR to the July 27 Deshotel decision -he kept telling them "I applied for DIRECT connection - you have NOT ADDRESSED that!" do the pre-Deshotel decisions apply to this aspect of his case?

5. As the Deshotel case states "where an RO renders a decision on a veteran’s claim for benefits but fails to address one of the claims, that decision is final as to all claims; the RO’s failure to address the implied claim “is properly challenged through a CUE motion,” not a direct appeal.3" - is that saying that the failure to address one of the claims is in and of itself a CUE?

I think we would still have a CUE on failure to apply §3.303(d) And §3.307 (c.)

Because §3.303(d) Post-service diagnosis of disease SPECIFICALLY addresses diseases which were diagnosed AFTER service - and doesn't give the VA the authority to simply dismiss Direct Service connection with the excuse that it wasn't diagnosed in service - without giving medical rational for why the post-service diagnosis would preclude it from being Service Connected.

Also And §3.307 (c.) states: “Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”Symptomatology shown in the prescribed period may have no particular significance when first observed, but in the light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect may be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree.”

I would think this would be DIFFERENT than a Failure in Duty to Assist - in that they did not DEVELOP the claim as directed by law - looking over the evidence OF RECORD to look at it in the light of subsequent developments.

So once again, failing to address why medical evidence of record would preclude Service Connection of a disease that was diagnosed AFTER the presumptive period -could be a CUE - because section §3.307 (c.)sets out specifically what the VA is supposed to do if a chronic condition is diagnosed AFTER the presumptive period (which automatical ASSUMES that it was not diagnosed WITHIN the presumptive period.)

So once again, a simple "your disease wasn't diagnosed within the presumptive period" doesn't show any attempt to consider and apply the LAWS that SPECIFICALLY tell them what to do if a disease is diagnosed after such time.

But does anyone know if according to Deshotel - failure to adjudicate an issue is a CUE on its own right?

Free

[Alex]

Whether an unadjudicated claim is subsumed by a RO/BVA decision and must be attacked on the hasis or CUE, or whether it is nonfinal and remaains pending until there is an explicit finding on it, in which case it is appealable, is a source of mucho concconfusion.

There is a lot riding on this when there is an indquate medical examination, which is appealable when an ongoing claim continues unadjudicatd by which cannot be attacked on CUE because it involves a duty to assist.

Someone told ne last week that the cuort harmonized )or tied to harmpmnize)Deshotel and Andrews in a came out this week, but I haven't had time to read it. Guys in the private bar have been at the supposed conflict for more than a year.

Alex

Edited June 8, 2007 by Alex

[free_spirit_etc]

Good points. I also liked how you point out that people that argue with your evidence are giving you keys to strengthening your argument.

Actually - I wasn't using the night sweats and fatigue as a CUE, per se. I still maintain that the RO did not adjudicate the claim. My husband submitted a handwritten note from his doctor (from the Sir Force Base)- indicating the doubling times of pulmonary adeneocarcinoma - and number of doublings it would take for the tumor to reach 3 cm - and the standard time it would take for that kind of cancer to reach that size. The doctor had estimated that it would have taken 12 - 15 years. (My husband had a 28 year military career - and was diagnosed 2 years post retirement).

The night sweats and fatigue part - more addressed the issue of showing SYMPTOMOLOGY that MAY have been connected - in retrospect that DID appear within the presumptive period.

THe very nature of lung cancer is that it is usually asymptomatic until it is in the late stages of the disease. Actually, my husband wasn't "ill" when it was diagnosed. It was discovered on a physical he was getting to be a bone marrow donor.

So I am not maintaining there was a CUE because they didn't recognize that night sweats and fatigue may have been cancer related.

I am maintaining there is a CUE because though there was medical evidence in the file that his cancer DID start during the service - and no MEDICAL evidence that it did not start in the service - they did not really address that part of the claim. Though his initial claim was that his cancer had started in the service - the C&P examainer only indicated that he was asked to issue an opinion as to whether his cancer was related to asbestos exposure. He did not issue an opinion, nor does it indicate he was asked to, about WHEN the cancer may have started.

The BVA manual says that if the RO just states that a disease wasn't diagnosed during the service or presumptive period - that should be appealed - because that is making a medical decision without backing it.

Is it a medical fact the disease wasn't diagnosed? Yes.

But is it a medical fact that the disease could not have started in the service because it wasn't diagnosed then? No. Not unless they give medical rationale for it. Especially when he had the note from his doctor indicating it did start in the service. Of course, the doctor didn't STATE it started in the service. But he did say that it probably started 12 - 15 years earlier.

To just say your cancer didn't start in service doesn't take into account the laws on post-service diagnosis of disease.

If they just went by symptomology --then the night sweats and fatigue would have to come into play. I would agree that link could be made - but would be REALLY weak in trying to say there was a CUE because they didn't notice that part.

To me the cue is that they were provided with medical evidence of the growth rate of cancer - and totally ignored it.And they did not counter it with any medical evidence.

There are all kinds of cases at the BVA where they grant Service Connection based on the growth rates of cancer.

In fact when I typed in a search for doubling time -- I found case after case where service connection was granted for cancer - based on that alone (with no symptomology being reported). Hey! If lung cancer is usually asymptomatic -- maybe the lack of symptoms would BE a symptom of the nature of the disease. That would be a stretch - but we did send in supporting info that the diease usually has NO symptoms until its late stages.

Yes. I know now in retrospect that factor should have been appealed. I know that after studying the VA compensation system diligently for almost a year.

Vets have not been allowed attorneys - but to really succeed have had to have knowledge of someone with a law degree.

The BVA is where I keep getting the impression that they separate claims out - where direct and indirect are considered somewhat separate claims -- and not one claim where they only develop part.

http://www.va.gov/vetapp04/files/0405741.txt

In February 2002, the veteran's representative argued that

service connection on a secondary basis for obesity and for

lower back arthritis was warranted. In August 2002 the

veteran's representative again suggested that the veteran's

obesity was secondary to service connected disability. The

Board notes in passing that while service connection on a

direct basis for low back disability has been denied on

numerous occasions, service connection on a secondary basis

under 38 C.F.R. § 3.310 for low back disability has never

been adjudicated by VA.

And even when they accepted his claim they refered to it as cancer TO INCLUDE as due to asbestos exposure.

However, after the first letter accepting the claim - all the decisions just stated his claim was cancer DUE TO asbestos exposure.

They completely dropped the ball on the DIRECT service connection. The VCAA letter just told him what evidence to submit in regard to asbestos --not inservice occurance. I know that failure of duty to assist can not be a CUE.

But they never even said they were issuing a decision on whether his cancer started in the service. They just said they were issuing a decision on if it was due to asbestos exposure.

Had they sought a medical opinion of when his cancer started and that opinion did not agree with his doctor's note - that would be different. But he had a note from the doctor that indicated adenocarcinoma took 12 - 15 years to reach the size his was when it was diagnosed... and they sought had no conflicting evidence -

To me - if a doctor provided evidence that the cancer was probably about 15 years old when it reached 3 cm - and it was 3 cm when diagnosed in 2000 - then to deny the claim merely because it wasn't diagnosed in 1998 is a CUE. The laws are pretty clear that service connection should be granted for diseases diagnosed post service when all the information shows it most likely was incurred inservice.

I know how they weighed medical evidence isn't a cue. But there wasn't any weighing to it. The only medical evidence of record was that which supported that it DID start in the service.

Oh..and the symptomology that looked at in retrospect that would show a 10% disability during the presumptive period is only to grant PRESUMPTIVE service connection.

Service connection can still be granted by:

§3.303(d) clearly states: “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.”

Free

Free,

When I went to insurance investigator school they taught us to be in a position to argue both the plaintiff's case and the defendants case. Here I will be playing the devils advocate. This is just my opinion. I hope I am wrong. Free, Berta and anybody on the board feel free to tear this apart. Use my arguments to strengthen you case. I did this on my claims when one hadit member wrote opinions that I would lose many years ago. I sharpened my points and I won thanks to him.

If you are in a position to submit medical evidence that the night sweats and fatigue were early symptoms of the cancer then do it. If you are trying to say that adjudication CUED by not applying 3.307 to a claim that showed no medical link between the cancer and the night sweats and fatigue at the time of the previous decision then you are bucking established case law.

I have seen the VA use the following logic in case law. Unfortunately, It was so long ago that I read the cases I forgot exactly what the names of the cases were. In the mean time I will try to find them. The cases dealt specifically with the failure of military doctors to establish a diagnosis that was made at a later date. It was also determined that had the doctors performed tests the diagnosis would have been made and would have been sufficient to change the outcome. However, the VA did not consider the failure of military doctors to make a diagnosis to be an adjudication CUE. The responsibility of adjudication to fish for evidence was addressed by this decision and the court ruled that adjudication was not required to go fishing for medical evidence. The veteran was denied an earlier effective date of the claim.

The failure of a doctor to schedule tests or make a diagnosis is not the basis of a CUE. Furthermore, adjudication is not required to go on fishing expeditions when the doctors do not establish a link as addressed in case law prior to the VCAA. I have seen no decision that the VCAA over ruled this aspect of previous case law. Many people think the VCAA changed very little in the way cases are adjudicated. The VCAA did require that adjudication develop claims when there are diagnoses of the same name that need to be resolved. Additionally, there were previsions that the veteran had the option to seek a medical opinion for a nexus for any event in the military and a post service condition. I do not recall a burden on adjudication to seek a resolution of all possible scenarios that could develop as the result of vague symptoms that the doctors were aware of and failed to link to any specific condition while on active duty.

There is no unadjudicated claim. You are trying to turn an undeveloped portion of an adjudicated claim into an unadjudicated claim for the purpoe of getting an earlier effective date. They addressed the direct service connection and stated the medical rational was that cancer was not diagnosed in service or the presumptive period. However, they did not develop the claim any further. The problem I see is that this is starting to sound like a problem with the strength of the existing medical evidence. Not a question of whether or not it was adjudicated. It appears to me had they adjudicated the claim as you had wanted the evidence would not have been in the file to award the claim. If the medical reports you cited about the night sweats and fatigue were available to them they could say they read those reports and the doctors made no link connecting it to the cancer. If the reports were not available to them, then the question would be why not? I doubt that even if a report that made no connection between the night sweats and the cancer was available to them that this would be a significant problem. Previous case law required that the missing reports would have had to have been of such significance to change the outcome of the claim. Not only do I not see a change of outcome I do not see any significant reason that the night sweats would have been reason for additional development due to the fact that such a link was not made by the military doctors and adjudication would have had to go on a fishing expedition to explain what was causing the night sweats and fatigue.

It becomes a question if whether or not the evidence at the time of the denial would have even been strong enough to require any further development. How are they to know that the fatigue and night sweats were reason to get more medical reports and apply 3.307. There is a place on the form 9 that allows you to make this kind of statement. If you turned in the form 9 with no mention of your position they could close the claim and require you to re-open it and your medical opinion of a link between the night sweats would become new evidence. If you mentioned it on the form 9 and they closed the claim anyway then you should have appealed. I agree that the claim can be won based on submission of a medical link between the night sweats and the cancer. However, I do not see a CUE.

They will probably claim that in view of the fact that the doctors made no connection between the fatigue and night sweats to the cancer, on the original exams, it would be the claimants responsibility to advance their claim and submit the medical evidence necessary to make the connection at the time this information becomes available to the claimant. 3.307 is an avenue which allows for service connection of these types of claims. However, it is not a mandate that there be a fishing expedition to explain all unexplained or unlinked symptoms which occur in the military at the time of initial adjudication of a claim for service connection.

By the way my personal opinion is that veterans should be compensated for all disabilities which are verified by a medical history for all times the veterans are effected. All time statutes and filing requirements should be set aside. The medical facts speak for themselves. My justification is that veterans were denied their right to adaquate representation when attorneys were taken out of the loop back in the 40's or when ever it was. I am convinced that if I had an attorney of equal expertise and investigative proceedures represent me at the time of my discharge as I had when I was injured while working for city govt. I would have recieved 20 years of benefits that were denied because neither I nor my SO were qualified nor had the proceedures that would have identified disabilities that were present at my discharge yet they not were service connected until 26 years after my discharge. I posted this position long ago.

[Hoppy]

free,

I remember you talking about the growth rate report some time ago. I did not associate it with this last post. If this report was submitted prior to the denial then I agree that it is indicative of a need to address direct service connection. Also, I agree that the logic on the denial should have rebutted it or at least discussed it. The statement that cancer was not treated in the service makes me wonder if the problem is that they did not read the growth report. Based on the logic in the denial I do not know how they could assert that they even read the report on the growth issue.

As far as the 10% issue you cleared somethiong up for me. I did not make the association to presumptive period diagnoses. However, I figured that there had to be parallel laws that opened the door to service connection and the 10% was not a requirement in all cases. I was discharged with no ratable disabilities. I now have four rated disabilities. I always figured they used post service initial diagnoses or re-diagnosis to rate and service connect my conditions.

[free_spirit_etc]

Hoppy. You have been very helpful. I teach a Public Speaking class - and so many students get upset if someone questions their logic. I just keep telling them - WELCOME the opportunity that someone questioning your argument presents. They are giving you the keys to making your argument stronger. They are only hearing what you are actually saying - and don't have access to all the information you hold in your head. So they hear what you are actually putting out there.

Putting together a decent argument is fine. But when the stakes are high - you need something stronger than a decent argument.

I honestly don't think they read much of anything in my husband's claim EXCEPT the so called C&P.

I have looked through all my husband's other claims - and though I see some errors the RO made - they at least addressed the issues. They have a way of mimicking back some of the things you said to show that they read it. And they would bring up some of the evidence and discuss it. Even though I couldn't agree with some of their logic - they at least provided some.

However the SOC he got for this claim was just plain shoddy. They didn't mention ANYTHING that was NOT in the C&P report... and they acted like he had a C&P exam - when he did not. The examiner clearly stated:

"The purpose of this examination to evaluate the Veteran for a claim of service connection for cancer of the lung. Specificaly, the Veteran reports that he believes this is secondary to an asbestos exposure in service. It is requested to offer an opinion after the review of the records whether there is a relationship beteen his currently detected lung carcinoma and exposure to asbestos in the service, or to opinion as to any other etiology."

Nothing about when the cancer may have started. Also - the guy NEVER saw him - yet stated that he had NO apparent residuals from the lung cancer (though he had a lower lobe removed, an 11 inch scar from the surgery, the same day the VA examiner indicated he reviewed my medical records – a pulmonary function test done the SAME DAY at the VA noted he had dyspnea on hills and stairs, frequent wheezing, and decreased FVC (73% predicted) and decreased FEV1 (69% predicted

His DLCO was 51%.

My husband never got a copy of this report until we started trying to build his claim last year.

My husband's ORGINAL letter to the VA to add the claim stated that he had orginally been misinformed and told the cancer was small cell - which can have a rapid growth rate. However, on his annual follow up - upon reviewing the path report - they discovered that the cancer was nonsmall cell - adenocarcinoma. He reported that the doctor had explained the doubling time - and told him that to be the size it was when it was discovered and removed - it would have been in place for at least 12 years, and more likely 15 years - which would have placed in somewhere in the middle of his unbroken 28 year military career.

THAT was his claim. He sent along the sheet where the doctor had written out the doubling times, and how they are calculated, and at what time frames the cancer would have been what size.

He ALSO sent another attachment that said - to further support my cancer claim - I am attaching evidence of asbestos exposure while I worked as an electrician.

The physician notes in the record also support his report --The doctor noted - the patient was misinformed about the type of cancer. It is NOT small cell. It is adenocarcinoma. Important differences explained to the patient.

Yet the VA ONLY addressed the asbestos part. They did not even ASK the C&P examiner to issue an opinion on the approximate date of onset.

When my husband got his denial - His NOD again focused on "I am CLAIMING that the cancer STARTED during my military career!" He went into the details again.

The DRO just restated what the original denial said. And BOTH of them just looked like they had just read the C&P exam.

I think they just did the topsheeting thing.

He didn't send in the strongest evidence in the world - I realize that. he didn't have a written opinion where the doctor came out an said _ I am writing this opinion for XXX because XXXX and I think his cancer started in the service.

However he did provide him with evidence that the cancer he had commonly takes 6 months to double - 35 doublings to reach 3 cm. - which would take about 15 years.

I have seen quite a few cases where the BVA would actually treat this evidence as stronger evidence...because he wasn't a doctoer hired to write a favorable opinion. He was an Air Force doctor who treated my husband and documented the evidence within his notes.

We submitted additional evidence this past year to strengthen that. The National Cancer Institute SEERS TRAINING PROGRAM, Various Medical Schools, etc, (VERY reputable sources ALL give about the same doubling times for pulmonary adenocarcinoma. 180 days is the STANDARD. (My husband had submitted some before - but they weren't from as reputable of sources - I try to go for the gold on sources.)

And granted ALL adenocarcinoma doesn't double in exactly 180 days. But we are not talking about someone whose cancer was discovered 12 years later saying they had it for 15 years. We are talking about someone who has a cancer that the standards of medicine estimate would have taken 15 years to reach the size it was when discovered - and it was discovered LESS THAN TWO YEARS after he retired. And with 28 years in the service - that pretty well puts it in the service.

So to not ever acknowledge in any of their writing that my husband alleged that it started in service.

To not ask THEIR doctor to give an opinion on it.

To not mention the report from HIS doctor.

To merely mimic back the C&P notes.

I don't think that merely mentioning your cancer was not diagnosed in the service or within the presumptive period really addressed the issue - because the medical evidence of record had already shown that the cancer would have been in place for a long time before it was diagnosed.

Had they acknoweldged in ANY way that he SAID his cancer started in the service - and addressed that in ANY way (even if they were wrong in how they addressed it) --I think they would be covered.

But no matter how much he told them he wanted them to address the fact that it STARTED in the service -- thye just totally ignored it.

Even this past year - he wrote them and told them that the fact that his cancer had started in the service had NEVER been addressed - and asked them to adjudicate the unadjudicated issue.

What was their response?

They sent him a letter telling him what New and Material Evidence he needed to send in to prove ASBESTOS EXPOSURE!!!!!

ACK!!!!!!!!!!!!

Free

free,

I remember you talking about the growth rate report some time ago. I did not associate it with this last post. If this report was submitted prior to the denial then I agree that it is indicative of a need to address direct service connection. Also, I agree that the logic on the denial should have rebutted it or at least discussed it. The statement that cancer was not treated in the service makes me wonder if the problem is that they did not read the growth report. Based on the logic in the denial I do not know how they could assert that they even read the report on the growth issue.

As far as the 10% issue you cleared somethiong up for me. I did not make the association to presumptive period diagnoses. However, I figured that there had to be parallel laws that opened the door to service connection and the 10% was not a requirement in all cases. I was discharged with no ratable disabilities. I now have four rated disabilities. I always figured they used post service initial diagnoses or re-diagnosis to rate and service connect my conditions.

[Hoppy]

Free,

I had to deal with a lot of nonsense before a DRO awarded my claim. My SO was of the opinion that all the nonsense was a "red herring" to confuse the real reason the were denying the claim. They did not want to give me any hint as to the real reason for the denial so as I would not focus on it and and get my ducks in-order.

My disease is a systemic disease that has a vague etiology. However, it absolutly occurred while I was on active duty and was diagnosed while on active duty. Yet, the VA ran me around for 6.5 years.

The DAV was of the opinion that the VA had singled out particular types of claims and became adversarial on these claims. I just figured that systemic diseases with a vague etiology was that type of claim.

I have to wonder if there is not an issue they are trying to do the "red herring" trick on your husbands claim. Maybe he was a cigarette smoker and it is noted all over his SMR. Maybe the VA has become adversarial on smoking related diseases. Considering how long your husband was on active duty he was probably around when the military was handing out cigarettes for free.

By the way I was educated in the UC system. Many of our classes were full out encounters with other students in the class. We were taught to learn from our adversaries. I was a senator from the art department (a political move, not my major). As such I had to take public speaking and political argumentation classes. Some of my favorite teachers were were in the speech department.

Edited June 10, 2007 by Hoppy

[free_spirit_etc]

Yes. My husband was a smoker. And I think that had something to do with it. They didn't mention the evidence where his military physician indicated that the risk of developing lung cancer was 8 times with asbesos alone, 10 times from smoking alone and 80 times with the two combined. If your risk is boosted from 10 percent to 80 percent --that is a pretty significant risk. The doctor just had it in his notes - and didn't give medical rationale --but medically sound principles support that conclusion - and even the VA's own manual - states that the risk of cancer from asbestos exposure is significantly increased in smokers.

I have seen the VA use that to grant connection too. Instead of saying "well - he smoked" - they indicate that the manual says the risk is higher among smokers -so the smoking is actually used to the Vet's benefit, rahter than their detriment.

And the doctor stated he had empyhsematic changes -- which further linked the cancer to smoking.

The doctor didn't mention he had pathology proven interstitial fibrosis though.

From what I can see - it looks like the only thing the doctor looked at was the path report from the lung cancer surgery - and the only thing the Ro looked at was the C&P report.

The doctor stated that there was no evidence he was exposed to asbestos because he wasn't part of any occupational screening (those programs were STARTED about 5 years after my husband changed fields and was no longer exposed). And that he didn't have any unique conditions that could be attributd to asbestos exposure.

That totlly disregarded the fact that he had interstitial fibrosis - and that both his pulmonogit and oncologist had documented in his medical records that he had been exposed to asbestos while working as an electrician in the Air Force.

So yes.. I think it was just a thing against smoking.

They just saw that he smoked and breezed right through the decision.

However - they at least addressed the asbetos exposure... not adequately --but at least they addressed it. And they had medical evidence (slight --but evidence none-the-less) that countered the evidence already in the record 9whcih they didn't read anyway).

Free

Free,

I had to deal with a lot of nonsense before a DRO awarded my claim. My SO was of the opinion that all the nonsense was a "red herring" to confuse the real reason the were denying the claim. They did not want to give me any hint as to the real reason for the denial so as I would not focus on it and and get my ducks in-order.

My disease is a systemic disease that has a vague etiology. However, it absolutly occurred while I was on active duty and was diagnosed while on active duty. Yet, the VA ran me around for 6.5 years.

The DAV was of the opinion that the VA had singled out particular types of claims and became adversarial on these claims. I just figured that systemic diseases with a vague etiology was that type of claim.

I have to wonder if there is not an issue they are trying to do the "red herring" trick on your husbands claim. Maybe he was a cigarette smoker and it is noted all over his SMR. Maybe the VA has become adversarial on smoking related diseases. Considering how long your husband was on active duty he was probably around when the military was handing out cigarettes for free.

By the way I was educated in the UC system. Many of our classes were full out encounters with other students in the class. We were taught to learn from our adversaries. I was a senator from the art department (a political move, not my major). As such I had to take public speaking and political argumentation classes. Some of my favorite teachers were were in the speech department.