Claims 101 Question

[betrayed]

Would you be better of when filing a claim put down asbestosis or lung disease?

Seems like the VA plays the name game to their advantage when they can...........

[Guest Berta]

If a doc says "asbestosis" that gives the VA no wiggle room, like they can get if it is claimed as lung disease from asbestos. Unless the doctor states "lung disease from asbestos or more than likely"

This is an interesting BVA decision-

The widow contended that her husband's death was related to his asbestos exposure in service.

http://www.va.gov/vetapp92/files3/9226449.txt

The veteran Was a smoker but this is the rationale behind this decision (and a good reason to have an IMO doctor get -or get them yourself for the doctor to consider-ANY abstract, study or treatise that supports your claim) Dr. Bash made reference to a very well known medical text in my IMO,quoting a specific passage in support of his IMO)

This decision is so signficant with the medical references that I am posting it all here:

92 Decision Citation: BVA 92-26449

Y92

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

DOCKET NO. 91-49 195 ) DATE

)

)

)

THE ISSUE

Entitlement to service connection for cause of the veteran's

death.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

C. Chaplin, Associate Counsel

INTRODUCTION

This matter came before the Board of Veterans' Appeals

(hereinafter the Board) on appeal from a rating decision of

December 3, 1990, from the Denver, Colorado, regional office

(hereinafter RO). The notice of disagreement was received

on December 17, 1990. The statement of the case was issued

on January 8, 1991. The substantive appeal was received on

January 28, 1991. A supplemental statement of the case was

issued on March 11, 1991. A hearing was held before a

hearing officer at the RO in April 1991. The appeal was

received at the Board on November 22, 1991, and docketed on

November 26, 1991. The appellant has been represented

throughout her appeal by the Disabled American Veterans, to

which the file was referred. That organization submitted

additional written argument to the Board on March 19, 1992,

and the case is now ready for appellate review.

The veteran had active service from October 8, 1958, to

November 22, 1962, and from March 26, 1964, to March 31,

1987.

CONTENTIONS OF APPELLANT ON APPEAL

The appellant contends that the RO erred in not granting

service connection for the cause of her spouse's death. She

contends that his exposure to asbestos during his career in

the United States Navy was the underlying cause of the lung

cancer which resulted in his death.

DECISION OF THE BOARD

In accordance with the provisions of 38 U.S.C.A. § 7104

(West 1991), following review and consideration of all

evidence and material of record in the veteran's claims

file, and for the following reasons and bases, it is the

decision of the Board that the preponderance of the evidence

supports the claim for service connection for residuals of

exposure to asbestos as the cause of the veteran's death.

FINDINGS OF FACT

1. All relevant evidence necessary for an equitable

disposition of the appellant's appeal has been obtained by

the agency of original jurisdiction.

2. The veteran served in the United States Navy as an

electrician's mate and was exposed to asbestos.

3. The veteran's death was from metastatic squamous cell

carcinoma; the primary site was the right upper lobe of the

lung.

4. Autopsy findings included fibrous plaques of parietal

pleura which are a common manifestation of asbestos exposure.

CONCLUSIONS OF LAW

An asbestos-related disorder was incurred in service.

38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a)

A service connected disorder caused or contributed

materially or substantially to cause the veteran's death.

38 C.F.R. § 3.312.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

We have found that the appellant's claim is "well grounded"

within the meaning of 38 U.S.C.A. § 5107(a) (West 1991);

that is, she has presented a claim that is plausible.

Furthermore, the appellant has not indicated that any

probative evidence not already associated with the claims

folder is available, and we accordingly find that the duty

to assist her, mandated by the aforementioned section, has

been satisfied.

The appellant seeks service connection for the cause of

death of her husband, who had 27 years of active service and

retired in March 1987. A copy of the death certificate

shows that the veteran died on April [redacted] 1990, due to

metastatic squamous cell carcinoma. At the time of death,

he was service connected for pulmonary tuberculosis,

evaluated at 10 percent; bilateral hearing loss,

sensorineural, evaluated at 10 percent; hypertrophic

degenerative disease, both sacroiliacs and

right knee, evaluated as noncompensable; and post-operative

residuals, right inguinal hernia, evaluated as

noncompensable. The combined rating was 20 percent.

To establish service connection for the cause of the

veteran's death, the evidence must show that disability

incurred in or aggravated by service either caused or

contributed substantially or materially to cause death.

38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.312.

The appellant, the veteran's widow, filed a claim for

service connection for cause of death. The service records

show that the veteran was an Electrician Mate, an occupation

historically associated with asbestos exposure. The record

shows that the veteran was diagnosed with cancer of the lung

in August 1989, following several months of symptoms. His

death occurred on April [redacted] 1990. An autopsy revealed the

site of the primary tumor to have been in the right upper

lobe of the lung. Other findings included fibrous plaques

of perietal pleura, gross evidence of mild emphysema (bullae

and prominence of the bronchi) and some localized

interstitial fibrosis considered to be secondary to

radiation therapy.

The claims file was referred to a Board medical adviser for

a medical opinion. After review of the claims file, the

physician concluded that "The veteran's death from cancer of

the lung in 1990 cannot be disassociated from his inservice

exposure to asbestos." He noted that "Autopsy-proven

pleural plaques occurring in this veteran must be taken as

evidence of asbestos exposure." In support of his

conclusion, he offered:

"Pleural plaques are currently the

most common manifestation of exposure

to asbestos." Mossman, BT and Gee,

JBL, et al: Asbestos-related

disease. N Engl J Med 1989;

320:1726. "The association between

pleural plaque and asbestos exposure

has been amply confirmed by population

studies and appears to be dose

related." W. McCaughey, M.D., et al.,

Tumors and Pseudotumors of the Serous

Membranes [AFIP Atlas of Tumor

Pathology], 113 (Fascicle 20, 1985).

"(N)oncalcified pleural plaque

formation is probably the commonest

roentgenograhic manifestation of

asbestos-related disease"; the

"appearance of multiple pleural

plaques is so specific that exposure

to asbestos definitely can be

concluded, provided that there has

been no occupational history of

exposure to related minerals talc or

mica." R. Fraser, M.D., et al.,

Diagnosis of Diseases of the Chest,

2335 (3rd ed. 1990)

His report further stated:

Asbestos, especially the chrysotile

type, exerts a powerful synergistic

effect in leading to bronchogenic

carcinoma in individuals who also

smoke. One reference notes that it

has been calculated that even

relatively brief exposure to heavy

asbestos contamination increases the

risk of lung cancer ten-fold in a

smoker. J. Holland, M. D. and E. Frei

III, M.D., et al., Cancer Medicine, 74

(2nd ed. 1982). Early epidemiologic

studies indicated that the effects of

asbestos in smoking combine in a

multiplicative fashion, rather than

additive, to produce lung cancer.

Mossman, supra, at 1724; McCaughey,

supra, at 24. ... There is also

evidence that low level exposure to

asbestos, comparable to that which can

cause mesothelioma, may contribute to

the occurrence of carcinoma of the

lung. Id., at 24.

The veteran was exposed to both

cigarettes and asbestos, the latter

during his lengthy period of military

service. This combined exposure put

the veteran at significant increased

risk for developing bronchogenic

carcinoma.

In view of the foregoing, the record establishes a

probability that asbestos exposure was the etiology of the

squamous cell carcinoma, and service connection for the

cause of the veteran's death is warranted.

ORDER

Entitlement to service connection for the cause of the

veteran's death has been established. The benefit sought on

appeal is granted.

BOARD OF VETERANS' APPEALS

WASHINGTON, D.C. 20420

C. P. RUSSELL

JACK W. BLASINGAME

*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of

Veterans' Appeals Section, upon direction of the Chairman of

the Board, to proceed with the transaction of business

without awaiting assignment of an additional Member to the

Section when the Section is composed of fewer than three

Members due to absence of a Member, vacancy on the Board or

inability of the Member assigned to the Section to serve on

the panel. The Chairman has directed that the Section

proceed with the transaction of business, including the

issuance of decisions, without awaiting the assignment of a

third Member.

NOTICE OF APPELLATE RIGHTS: Under *38 U.S.C.A. §7266 (West

1991), a decision of the Board of Veterans' Appeals granting

less than the complete benefit, or benefits, sought on

appeal is appealable to the United States Court of Veterans

Appeals within 120 days from the date of mailing of notice

of the decision, provided that a Notice of Disagreement

concerning an issue which was before the Board was filed

with the agency of original jurisdiction on or after

November 18, 1988 (see sec. 402 of the Veterans' Judicial

Review Act (Pub. L. 100-687)). The date which appears on

the face of this decision constitutes the date of mailing

and the copy of this decision which you have received is

your notice of the action taken on your appeal by the Board

of Veterans' Appeals.

Edited March 1, 2006 by Berta

[betrayed]

my question didnt revolve around asbestosis...........For example I filled for

Bulging Disk at C-6/C-7 and C-7/T-1

In-coordination of the right upper extremity

Benign Paroxysmal Positional Vertigo (BPPV)

All three of these are very well documented in my SMR,

I was awarded SC 0% for all three, but for the Benign Paroxysmal Positional Vertigo (BPPV) they combined it with tinitus and just call it Tinutis with vertigo. SC10%.

What I am getting at would I have faired better if I had listed them diffrently on the claim.

[Guest jstacy]

They should have rated the bulging disks as invertabral disk syndrome.

Did they service connect the disks at all. ALso look for other items Like Spondylosis and Neural Formainal Stenosis in any reports you may have. This doesnt sound right to me.

This may result in a Cue Claim being filed.

[betrayed]

Did they service connect the disks at all.

Yes

[Hoppy]

Positional vertigo is text book for cervical disk herniation. It is just a question of how that would be rated. I have the same thing. I went through a 2 year phase where it was so bad I would feel like I had ten beers all day. I even slurred my words. They attribute it to cervical disc herniation. They ran brain scans and did not find anything. There is no disputing the disc herniation once I got the MRI's on my neck.

[betrayed]

Positional vertigo is text book for cervical disk herniation.

please explain