Moving Along Slowly On My Claim

[free_spirit_etc]

My husband filed for SC for lung cancer prior to his death Feb. 5, 2007

I filed for DIC and accrued benefits May 2007

I have just been WAY busy and haven't been following up aggressively on the claim - but get a bit of time to work on it from time to time - and it is getting close to moving toward the top of my priority list as soon as I get done wading through everything else that is above it.

I have some questions I can start working on a bit now.

1. I received a denial and SOC on November 8, 2007.

This was prior to the one year I had to submit evidence.

I know I will have to get an IMO to submit.

When I get the IMO should I

a. Submit it and any other evidence I have and ask that make a decision on my claim as I submitted the evidence within the one year time frame (and they made a decision before that)?

b. Just go ahead and accept that their initial denial is a denial - and submit a NOD with my evidence - which would put me a step closer to the appeal I might have to go through.

c. Both - ask them to make a decision based on the new evidence submitted in one year AND file a NOD -

d. Same as c - but WAIT on the NOD (I have until November 2008).

Medical Opinion

Though they actually ACKNOWLEDGED that my husband was requesting consideration on the theory that his cancer must have begun in the service - the reasons they gave did not have anything to do with that theory.(Based on the growth rate - the cancer could NOT have STARTED after retirement).

They specifically said: "To assist in gathering evidence to support the claim, we requested a VA medical opinion. In response to that request, a VA physician reviewed the records and noted that the symptoms noted during the veteran’s treatment in the service suggest manifestations of viral respiratory tract illness, and that none of the episodes can be reasonably linked to an early manifestation of lung cancer. He then provided the medical opinion that the veteran’s signs and symptoms listed in his service medical records are less likely than not early manifestations of the adenocarcinoma of the lung first diagnosed in September 2000.

So they blew off the whole growth rate argument - and just addresed whether any SYMPTOMS in the service were related to the cancer.

I have researched cancer and growth rate at the BVA and come up with TWO distinct patterns.

Those which GRANT service connection because of more likely than not IMOs based on growth rates.

Those who ARGUE growth rates - but do NOT provide an IMO - which then leads the VA to somehow FIND a medical specialist who says something about how the medical community accepts that the ONSET of cancer is when it is DIAGNOSED.

This is completely idiotic - as the medical community knows fully well that cancer STARTS BEFORE it is diagnosed - which is why they keep pushing for earlier and earlier SCREENINGS.

But - it is a BIG lesson on EVIDENCE. No matter what the journals SAY - you need a DOCTOR to SAY that the cancer started before it was diagnosed to get the GRANTED type of decision - because if you leave it to THEM - they will find the doctors who say that cancer starts at diagnosis - and you will get a DENIED type of decision.

Anyway - I am asking for a copy of the VA doctor's opinion.

I am also asking for a copy of the request they sent for that opinion. (Because if they only ASKED him to discuss if the symptomology in service was related to the cancer - they prejudiced the claim by limiting what he discussed. I am not going to ARGUE that right away - because if his report isn't favorable - then I don't want to give them a reason to let him discuss any more - However, I will keep it as a back up.

Anyway - Since we already asked they consider the theory of that the cancer had to have started in the service - and they specifically acknowledged that was the request - and they have ALREADY had their opportunity to GET a medical opinion about that - then if this doctor played around and just discussed the symptoms in service - have they already USED their chip to get an independent medical opinion?

What I am asking - is now that they played their hand in whatever way they played it - if I get a medical opinion that indicates it is more likely than not that the cancer started in the service (regardless of whether there were any symptoms) - can they seek ANOTHER opinion that addresses THAT? Or would that be a "fishing expedition?

The growth rate argument is not unique. The BVA has granted many cases based on that same theory. In fact when I typed in a search at the BVA with Cancer and Doubling Time - I saw GRANTED GRANTED GRANTED.

SO they know EXACTLY what we are talking about - they just have danced around the issue.

Also - my understanding was that the VA doctor was supposed to view the ENTIRE C-file. As my husband has repeatedly stated his cancer began in service - has repeatedly stated his doctors told him that based on growth rates, and the LAST evidence we submitted was all the treatisies that expounded on that - If the doctor didn't even address that - and only discussed symptoms in service - then again, will they be "allowed" to seek ANOTHER opinion after I submit an IMO.

I guess I am looking for a way to prevent that game.

Some GOOD news is that they actually CALLED the evidence we submitted " a bound volume of medical treatises" and NOT "internet printouts."

I consider that a GOOD sign - and the information we sent is from sources such as the National Cancer Institute, Center for Disease Control, FDA, peer-reviewed journals (NOT anything they could question the credibility of).

[Pete53]

Free:

I wish you the best on your claim. My mind is kind of foggy at this moment and I certainly am no expert on DIC although I need to know so I can leave instructions for my wife should I pass sometime down the road.

[Ricky]

quote name='free_spirit_etc' date='Jan 20 2008, 03:31 PM' post='76073']

My husband filed for SC for lung cancer prior to his death Feb. 5, 2007

I filed for DIC and accrued benefits May 2007

I have some questions I can start working on a bit now.

1. I received a denial and SOC on November 8, 2007.

This was prior to the one year I had to submit evidence.

This one year is just a general practice rule. They can and do decide claims before the one year is up.I know I will have to get an IMO to submit.

When I get the IMO should I

a. Submit it and any other evidence I have and ask that make a decision on my claim as I submitted the evidence within the one year time frame (and they made a decision before that)?

b. Just go ahead and accept that their initial denial is a denial - and submit a NOD with my evidence - which would put me a step closer to the appeal I might have to go through.

c. Both - ask them to make a decision based on the new evidence submitted in one year AND file a NOD - If you have or will obtain the new evidence before May 08 I would do both.

d. Same as c - but WAIT on the NOD (I have until November 2008).

What I am asking - is now that they played their hand in whatever way they played it - if I get a medical opinion that indicates it is more likely than not that the cancer started in the service (regardless of whether there were any symptoms) - can they seek ANOTHER opinion that addresses THAT? Or would that be a "fishing expedition? Actually the VA can obtain a medical opinion at any time they desire to do so. However, sometimes the BVA will realize this and call it a "fishing expedition.

The growth rate argument is not unique. The BVA has granted many cases based on that same theory. In fact when I typed in a search at the BVA with Cancer and Doubling Time - I saw GRANTED GRANTED GRANTED. Although not a legal ruling (presedent setting) you can reference these cases if you go to the BVA which in some cases has allowed the hearing officer hearing your appeal to see how his comrades has ruled on similar appeals. Sometimes works, sometimes it does not work. Also as you can see these cases were won at the BVA level. It is very hard to get a RO to award a claim on theory, medical or other wise. So I truly feel that you will probably end up having to go to the BVA before you get any award on your case. However, a very strong IMO/IME with an air tight rational could get you some success at the RO.

Also - my understanding was that the VA doctor was supposed to view the ENTIRE C-file. As my husband has repeatedly stated his cancer began in service - has repeatedly stated his doctors told him that based on growth rates, and the LAST evidence we submitted was all the treatisies that expounded on that - If the doctor didn't even address that - and only discussed symptoms in service - then again, will they be "allowed" to seek ANOTHER opinion after I submit an IMO. As above yes they can. That is why your IMO must attack the VA doc's opinion and provide an air tight rational.

I guess I am looking for a way to prevent that game.

Some GOOD news is that they actually CALLED the evidence we submitted " a bound volume of medical treatises" and NOT "internet printouts." Yes this was good as most RO's do title them as internet print outs and if dicussed in the body of the SOC call them "mere print outs that are not probative in this claim." It is very hard to get a GS9 with not medical background to accept the fact that yes they are mere printouts, but no matter how mere they are they are the opinions and theories currently accepted by medical specialists throught the country.

Probally not what you wanted to hear but you are dealing with the VA! I agree with your arguments. It is hard to understand their denial and the doc's opinion. In most cases of cancer that I know of they do know and relay to the patient a approximate starte date of the cancer. I have never dealt with one on a VA claim but have known several people with cancer. With my aunt they told her that it looked like it had been going on for about 18 months based upon its present state. This was done at the time of diagnosis. Guess the VA doc knows something the rest of the medical does not. Seem like that is the case with any disease a veteran has!!

Edited January 22, 2008 by Ricky

[john999]

It seems the VA makes a special effort to go out of there way to deny a claim rather than give the vet the benefit of doubt. This process is wise for them since many vets and survivors then just give up and quit. They know this so keep fighting.

Probably half of the good claims go unpaid because the vet does not fight the denial.

[free_spirit_etc]

quote name='free_spirit_etc' date='Jan 20 2008, 03:31 PM' post='76073']

My husband filed for SC for lung cancer prior to his death Feb. 5, 2007

Thanks a lot Ricky!

I think I will ask them to reconsider AND file a NOD. I think I was reading that they CAN decide your claim quicker - but you still have a YEAR..meaning they have to RE-DECIDE it if you submit more evidence within the one year time frame...because they decided it before you were given the whole time.

I didn't send in the form that said I was done sending in evidence. But I am okay with them deciding because every time they make a decision - you get SOME information from them...

But the NOD might get me to the BVA sooner - which is where I might have to get to. But then again, the growth rate of cancer "theory" is a pretty sound theory. I have already sent in information from major university's, The National Cancer Institute, FDA, etc.

Even the SEERS program - which is the research arm of the National Cancer Institute, confirms the standard doubling time the doctors have reported.

The Surveillance, Epidemiology, and End Results (SEER) Program of the National Cancer Institute (NCI) is an authoritative source of information on cancer incidence and survival in the United States. SEER currently collects and publishes cancer incidence and survival data from population-based cancer registries covering approximately 26 percent of the US population.. The SEER Program is the only comprehensive source of population-based information in the United States that includes stage of cancer at the time of diagnosis and patient survival data. states. The SEER Program is considered the standard for quality among cancer registries around the world. Quality control has been an integral part of SEER since its inception. Every year, studies are conducted in SEER areas to evaluate the quality and completeness of the data being reported.

So the VA can't really dismiss it that easy as specualtion and theory.

So as soon as I get a DOCTOR to put it all TOGETHER - and say it all in ONE document --

Along with the paper we have from the pulmonologist who explained the doubling times - and the letter from his oncolgist that gives the doubling times - and all the info from very reputable sources BACKING what the doctors did write - I think it will be a hard one to deny.

Because to deny with with WEIGHT of the evidence - the VA doctor would have to say not only are OUR doctors wrong - but they will have to explain why they do not uphold the information reported by ALL the MAJOR who's who in cancer research.

I mean come on. To have grown to 3.1 cm in 2 years the cancer would have had to double at the rate of every TWELVE days. The AVERAGE doubling time is SIX MONTHS. Even studies on FAST GROWING tumors of that type - the FASTEST growth rate we have found is SEVENTY TWO DAYS.

Is it MORE LIKELY than not that my husband's cancer was the ONLY one that grew at such a record speed it DEFIES medical Science??

I sincerely doubt it.

Free

I filed for DIC and accrued benefits May 2007

I have some questions I can start working on a bit now.

1. I received a denial and SOC on November 8, 2007.

This was prior to the one year I had to submit evidence.

This one year is just a general practice rule. They can and do decide claims before the one year is up.I know I will have to get an IMO to submit.

When I get the IMO should I

a. Submit it and any other evidence I have and ask that make a decision on my claim as I submitted the evidence within the one year time frame (and they made a decision before that)?

b. Just go ahead and accept that their initial denial is a denial - and submit a NOD with my evidence - which would put me a step closer to the appeal I might have to go through.

c. Both - ask them to make a decision based on the new evidence submitted in one year AND file a NOD - If you have or will obtain the new evidence before May 08 I would do both.

d. Same as c - but WAIT on the NOD (I have until November 2008).

What I am asking - is now that they played their hand in whatever way they played it - if I get a medical opinion that indicates it is more likely than not that the cancer started in the service (regardless of whether there were any symptoms) - can they seek ANOTHER opinion that addresses THAT? Or would that be a "fishing expedition? Actually the VA can obtain a medical opinion at any time they desire to do so. However, sometimes the BVA will realize this and call it a "fishing expedition.

The growth rate argument is not unique. The BVA has granted many cases based on that same theory. In fact when I typed in a search at the BVA with Cancer and Doubling Time - I saw GRANTED GRANTED GRANTED. Although not a legal ruling (presedent setting) you can reference these cases if you go to the BVA which in some cases has allowed the hearing officer hearing your appeal to see how his comrades has ruled on similar appeals. Sometimes works, sometimes it does not work. Also as you can see these cases were won at the BVA level. It is very hard to get a RO to award a claim on theory, medical or other wise. So I truly feel that you will probably end up having to go to the BVA before you get any award on your case. However, a very strong IMO/IME with an air tight rational could get you some success at the RO.

Also - my understanding was that the VA doctor was supposed to view the ENTIRE C-file. As my husband has repeatedly stated his cancer began in service - has repeatedly stated his doctors told him that based on growth rates, and the LAST evidence we submitted was all the treatisies that expounded on that - If the doctor didn't even address that - and only discussed symptoms in service - then again, will they be "allowed" to seek ANOTHER opinion after I submit an IMO. As above yes they can. That is why your IMO must attack the VA doc's opinion and provide an air tight rational.

I guess I am looking for a way to prevent that game.

Some GOOD news is that they actually CALLED the evidence we submitted " a bound volume of medical treatises" and NOT "internet printouts." Yes this was good as most RO's do title them as internet print outs and if dicussed in the body of the SOC call them "mere print outs that are not probative in this claim." It is very hard to get a GS9 with not medical background to accept the fact that yes they are mere printouts, but no matter how mere they are they are the opinions and theories currently accepted by medical specialists throught the country.

Probally not what you wanted to hear but you are dealing with the VA! I agree with your arguments. It is hard to understand their denial and the doc's opinion. In most cases of cancer that I know of they do know and relay to the patient a approximate starte date of the cancer. I have never dealt with one on a VA claim but have known several people with cancer. With my aunt they told her that it looked like it had been going on for about 18 months based upon its present state. This was done at the time of diagnosis. Guess the VA doc knows something the rest of the medical does not. Seem like that is the case with any disease a veteran has!!