Question On Evidence

[free_spirit_etc]

For my husband's claim for service connection for lung cancer.

He retired from the Air Force after 28 years on Sept 30, 1998.

He was diagnosed with lung cancer after a 3.1 cm tumor was detected on August 7, 2000.

This was about 10 months past his presumptive period.

We have built our case around evidence that due to the growth rate - the cancer was most likely in place approximately 12 - 15 years before it was detected.

The Death Certificate gives approximate interval between onset and death as 8 years.

If taken literally - that would take it back to February 1999 - which is within his presumptive period.

But I don't think this helps our case as:

section §3.307 © states:

“No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period.”

So the 8 year remark might harm more than help - as it doesn't put it within his service time - or account for the slow growth rate.

I have no idea where the doctor came up with the time frame - probably from the amount of time he thought my husband had been treated.

This was not my husband's oncologist. Actually, this was the MD that just treated him while he was in the hosptial the last few weeks.

But I don't know whether to point anything out about it -- or just wait and see IF and HOW the RO interprets it -- and be prepared to deal with it IF they use it as evidence to deny the claim.

Free

[Hoppy]

free,

Considering this was a doctor who treated him for a short period prior to death the VA would find fault with it if it were favorable. They could question anything he said unless he made it clear that he had reviewed all the documents and other tests. The doctor could have got the idea about the eight year period from something your husband told him. A doctor filing out a death certificate may not know that this could be used for evidence with the VA and the VA does not allow a diagnosis that is based on a patients verbal recollection of past treatments.

This is a big problem when submitting reports written by doctors outside the C&P system. The VA shot down a favorable report written by a VA doctor I got a nexus letter from under the nexus letter requirement of 2000. I followed all the instructions on the directive and the doctor stated he based his opinion on blood tests and review of the SMR. The RO denied my claim saying the doctor did not read one of the other doctors opinions in the file indicatin post service onset and based his opinion on my subjective history.

This really threw me a curve because they did not identify the report by date or by the doctors name who wrote it. It took me two years to figure out what they were talking about. The report in the file that the doctor failed to read turned out to be for a different and non related skin condition. The report the VA said indicated post service onset was so vague the doctor did not even list the symptoms. Fortunately, I was able to figure out what they were talking about and found another report from a doctor who made the same diagnosis as the report the VA was citing as indicating post service onset. However, the report I found clearly showed a completely different symptom pattern.

I submitted the report and explained that the condition that onset post service is not the condition I requested to have service connected and the symptoms are completely different. This actually was the final battle for service connnection and when they got it they awarded service connection. It took 6.5 years. Fortunately, all my appeals were timely and I got a lot of retro.

[free_spirit_etc]

I wasn't aure whether to argue the point - or wait to see if they held it against him. There isn't much rhyme or reason for them awarding claims sometimes. I actually read a case where they got some expert at a University to state that the onset of cancer is considered to be the date it is diagnosed. So the BVA denied the claim --

You are lucky you have perserverence -- and the ability to see through their logical fallacies.

Heck. They couldn't even see there was any evidence I was my husband's spouse --though I sent in the Wedding License and I am listed as his spouse on his Death Certificate.

Hey! It lists me as the "Informant" --and then wife. Maybe I gave them the info...

I think he was just refering to the approximate amount of time my husband had been treated.

Free

free,

Considering this was a doctor who treated him for a short period prior to death the VA would find fault with it if it were favorable. They could question anything he said unless he made it clear that he had reviewed all the documents and other tests. The doctor could have got the idea about the eight year period from something your husband told him. A doctor filing out a death certificate may not know that this could be used for evidence with the VA and the VA does not allow a diagnosis that is based on a patients verbal recollection of past treatments.

This is a big problem when submitting reports written by doctors outside the C&P system. The VA shot down a favorable report written by a VA doctor I got a nexus letter from under the nexus letter requirement of 2000. I followed all the instructions on the directive and the doctor stated he based his opinion on blood tests and review of the SMR. The RO denied my claim saying the doctor did not read one of the other doctors opinions in the file indicatin post service onset and based his opinion on my subjective history.

This really threw me a curve because they did not identify the report by date or by the doctors name who wrote it. It took me two years to figure out what they were talking about. The report in the file that the doctor failed to read turned out to be for a different and non related skin condition. The report the VA said indicated post service onset was so vague the doctor did not even list the symptoms. Fortunately, I was able to figure out what they were talking about and found another report from a doctor who made the same diagnosis as the report the VA was citing as indicating post service onset. However, the report I found clearly showed a completely different symptom pattern.

I submitted the report and explained that the condition that onset post service is not the condition I requested to have service connected and the symptoms are completely different. This actually was the final battle for service connnection and when they got it they awarded service connection. It took 6.5 years. Fortunately, all my appeals were timely and I got a lot of retro.

[free_spirit_etc]

Odd that they expected YOUR doctor to address EVERY record - even though they were not relevent. But their doctors don't have to.

We did point out the the VA in our argument last year (asking that they declare the C&P inadequate) that the doctor only stated he reviewed the Service medical records. Wouldn't it seem like if the disease was diagnosed POST service - that reviewing the post service records would also be beneficial?

Free

free,

Considering this was a doctor who treated him for a short period prior to death the VA would find fault with it if it were favorable. They could question anything he said unless he made it clear that he had reviewed all the documents and other tests. The doctor could have got the idea about the eight year period from something your husband told him. A doctor filing out a death certificate may not know that this could be used for evidence with the VA and the VA does not allow a diagnosis that is based on a patients verbal recollection of past treatments.

This is a big problem when submitting reports written by doctors outside the C&P system. The VA shot down a favorable report written by a VA doctor I got a nexus letter from under the nexus letter requirement of 2000. I followed all the instructions on the directive and the doctor stated he based his opinion on blood tests and review of the SMR. The RO denied my claim saying the doctor did not read one of the other doctors opinions in the file indicatin post service onset and based his opinion on my subjective history.

This really threw me a curve because they did not identify the report by date or by the doctors name who wrote it. It took me two years to figure out what they were talking about. The report in the file that the doctor failed to read turned out to be for a different and non related skin condition. The report the VA said indicated post service onset was so vague the doctor did not even list the symptoms. Fortunately, I was able to figure out what they were talking about and found another report from a doctor who made the same diagnosis as the report the VA was citing as indicating post service onset. However, the report I found clearly showed a completely different symptom pattern.

I submitted the report and explained that the condition that onset post service is not the condition I requested to have service connected and the symptoms are completely different. This actually was the final battle for service connnection and when they got it they awarded service connection. It took 6.5 years. Fortunately, all my appeals were timely and I got a lot of retro.

[Hoppy]

The problem was that they thought the report was relevant. This is due to the fact that it was so vague they could intrepret it any way they wanted.

As a result of their confusion I found my self in a position that I had to prove that the condition did not onset post service even though there was no evidence that it did onset post service.

When I originally submitted the NOD I just argued that there was no evidence the condition onset post service. After two years of hearing nothing I woke up one night and had a flash of brilliance. I realized that I had to do more than just tell them they were wrong. I decided to find the reports from other doctors who treated me for the post service condition and submit them. I added a note that these reports were not in support of my claim and that the evidence in the file was sufficient to award service connection. The new reports were only sunmitted to show them that they errored by confusing two different diseases when determining that my condition was the result of post service employment. I was afraid they would base the award on new and material evidence and I would lose the earlier effective date.

[free_spirit_etc]

I got a semi-lightbulb moment. Though they said my husband had no respiratory problems in service - he did - but had not been attributed to cancer. He mostly had chronic sinutitis and chronic bronchitis.

I have NO idea why he didn't claim these when he retired. He claimed about everything that had happened to him -- but NOT the respiratory conditions. Of course, as a smoker he had a tendency to underplay the amount that he coughed and attribute his cough to smoking -- and most of the doctors seem to do that to.

But I am still puzzled why he never claimed the two conditions that had already been diagnosed as chronic conditions.

I think smokers like to shy away from the repiratory things...and don't even go to doctors for coughing.

Anyway - the bronchitis might be a piece of the puzzle. Part of my research shows that the coughing from lung cancer is often misdiagnosed as bronchitis - and other research shows that repeated bronchitis can be an early symptom of lung cancer. The American Cancer Institute lists repeated bronchitis as an early symptom of lung cancer.

So there might be a key there. He started being seen for bronchitis in the mid 80's. When he went to the doctor the coughing seemed to be pretty pronounced -- spells lasting 45 minutes - or episodes lasting several weeks. There was also a SMR report in which he got an x-ray to rule out lung cancer in 1996 (two years pre-retirement and 4 years before diagnosis) because he had a coughing spell that was so bad his left side ached for months.

I am sure the VA would point out that the 1996 x-ray ruled out lung cancer. Apparently the cancer was not detectable yet.

However, if I point out he DID display symptomology prior to discharge in the coughing - before my research - the VA could just write it off as "Yes. But that was bronchitis" But now - I don't think it could be written off as easily...because of the connection to bronchitis and lung cancer.

It isn't the strongest connection in the world. But it is still something - especially when he had coughing fits that were bad enough - and left rib pain (the cancer was in the left lower lobe) that cancer had been SUSPECTED - even though it was not detected before his retirement.

Free

The problem was that they thought the report was relevant. This is due to the fact that it was so vague they could intrepret it any way they wanted.

As a result of their confusion I found my self in a position that I had to prove that the condition did not onset post service even though there was no evidence that it did onset post service.

When I originally submitted the NOD I just argued that there was no evidence the condition onset post service. After two years of hearing nothing I woke up one night and had a flash of brilliance. I realized that I had to do more than just tell them they were wrong. I decided to find the reports from other doctors who treated me for the post service condition and submit them. I added a note that these reports were not in support of my claim and that the evidence in the file was sufficient to award service connection. The new reports were only sunmitted to show them that they errored by confusing two different diseases when determining that my condition was the result of post service employment. I was afraid they would base the award on new and material evidence and I would lose the earlier effective date.

[deltaj]

You cite 38 CFR 3.307 This response is going to seem wild but sometimes V.A. interprets a regulation prior to a statute (law). Look up that regulation and see if V.A. lists a statutory authority at the bottom referring to a particular section in 38 USC. Then look at the law the regulation is based on. If the regulation isn't consistent with the law you want to argue on appeal that V.A. interpreted 38 CFR 3.307 contrary to 38 U.S.C. ____. Another possible route on your appeal is to produce new and material evidence like a medical opinion from one of his treating doctors that this veteran's condition more likely than not developed while he was in service. Was your husband ever stationed in Vietnam? Lung cancer is presumptive for Vietnam veterans (see 38 CFR 3.309 which uses the term herbicide rather than Agent Orange). Also V.A. as far as I know is required to accept medical treastise evidence like evidence from a medical textbook on the growth rate of lung cancer. Lung cancer can cause pulmonary embolisms. Did your husband have any symptoms such as loss of memory while in service or any stroke symptoms while in service?

For my husband's claim for service connection for lung cancer.

He retired from the Air Force after 28 years on Sept 30, 1998.

He was diagnosed with lung cancer after a 3.1 cm tumor was detected on August 7, 2000.

This was about 10 months past his presumptive period.

We have built our case around evidence that due to the growth rate - the cancer was most likely in place approximately 12 - 15 years before it was detected.

The Death Certificate gives approximate interval between onset and death as 8 years.

If taken literally - that would take it back to February 1999 - which is within his presumptive period.

But I don't think this helps our case as:

section §3.307 © states:

“No presumptions may be invoked on the basis of advancement of the disease when first definitely diagnosed for the purpose of showing its existence to a degree of 10 percent within the applicable period.”

So the 8 year remark might harm more than help - as it doesn't put it within his service time - or account for the slow growth rate.

I have no idea where the doctor came up with the time frame - probably from the amount of time he thought my husband had been treated.

This was not my husband's oncologist. Actually, this was the MD that just treated him while he was in the hosptial the last few weeks.

But I don't know whether to point anything out about it -- or just wait and see IF and HOW the RO interprets it -- and be prepared to deal with it IF they use it as evidence to deny the claim.

Free