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Traveling Bva Hearing Coming Up In July

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handyman

Question

Our VSO could not locate the DRO for our scheduled DRO hearing last week. In order to appease us, another DRO at a quickly arranged informal hearing offered us a spot on the traveling BVA docket set for 2nd. week of July. The DRO mentioned that because of the evidence we had he would have denied the appeal and sent it BVA, I think a big chunk of time was was knocked off this appeal process due to their scheduling conflicts.

The contention is the veterans cause of death due to cigarette smoking which is secondary to service connected PTSD.

100% PTSD disability rating granted 2008.

SOC reads that VA was correct to deny DIC based o USC 1318, service connection for cause of death and accrued benefits.

Our evidence identifies Mr. XXXX PTSD as a contributing cause of death by Lymphoma, both directly(as much recent research implicates stress in carcinogenesis) and indirectly, through agravating his lung disease via heavy smoking.

Chronic PTSD-related smoking more than likely contributed to his death in three ways.

1, By irritating his bronchial linings, causing chronic bronchitis. Research has shown that chronic infection can induce lymphoma because of the constant and elevated rate of division of immune-system cells, increasing the likelihood of cancerous cell arising among them. His medical records indicate that he had a productive cough on and off for decades; the mucous produced was evidence of infection.

2.By weakening his pulmonary and immune systems, and rendering him less capable of fighting lymphoma once it appeared.

3. By possibly instigating follicular type Non-Hodgkins lymphoma directly.

Mr. XXXX service related PTSD contributed to hi life long smoking because it rendered him incapable of forming the intent to quit smoking. His smoking cannot be considered "willful misconduct' because as stated in the IMO of DR. XXXX his PTSD :rendered him incapabable of forming intent." unable tp pursue decided course of action when overwhelmed by emotional triggers mediated by streess hormones. Further scientific evidence delineates the strong connection between combat-related PTSD and heavy smoking. Smoking was the only method available to Mr. XXXX to cope with the unremitting stress of his PTSD, and his PTSD prevented him from being able to acknowledge the consequences of his smoking. He was unaware that his smoking constituded "willful misconduct.

The Va itself recognized the deterioration of Mr.XXXX capacity to for intent by granting his wife fiduciary responsibility for him in 2009 after he was judged incapable of managing his own financial affairs. His SOC states: "The doctor...reported fluctuating attention and concentration. The doctor also noted that abstract reasoning was impaired." Lack of attention, concentration, and abstract reasoning made it impossible for Mr.XXXX to focus on his smoking as a potential hazard to be avoided.

Evidence to support case.

IMO and CV of DR. XXXX cardiopulmonary physiologist.

IMO and CV of DR. XXXX MD, Psychiatrist and apsychoanalyst.

Pertinent medical records of Mr. XXXX.

Pertinent medical Literature.

Pertinent VA regulations.

Precedents set by BVA decisions in three similar cases.

I would like any ideas or thoughts on how to improve our case.

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Our VSO could not locate the DRO for our scheduled DRO hearing

Precedents set by BVA decisions in three similar cases.

I would like any ideas or thoughts on how to improve our case.

BVA decisions DO NOT SET PRECEDENCE.

Carlie passed away in November 2015 she is missed.

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  • HadIt.com Elder

In those days the put cigarettes in the lips of dying men. How the military can say they had no role in tobacco caused deaths for WWII generation is science fiction. My father's life was cut short by 40 years due smoking and he was a WWII vet. Those guys smoked unfiltered cigs as that was there only relief from tension during miserable conditions in and between combat. That was the "Good War" and the nation turns its back on war widows. Imagine how widows of a "bad war" like Vietnam are treated?

When these guys who fought in Iraq and Afghanistan are 70 years old they will not even be remembered at bus stops if there are any bus stops.

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Carlie is correct.:

“Precedents set by BVA decisions in three similar cases. “

BVA decisions do not set precedent. Only OGC opinions and some CAVC decisions do.

Are those decisions dated prior to the OGC Pres Op in this BVA case?

“The contention is the veterans cause of death due to cigarette smoking which is secondary to service connected PTSD. “

Does your appeal consider the most recent General Counsel Precedent Opinion # 06-2003 on Nicotine dependence as to the 1998 amendment as well as the actual opinion from the General Counsel?

In addition to the above, 38 U.S.C.A. § 1103 was amended in

July 1998 to prohibit the payment of compensation benefits if

the disability for which benefits are claimed resulted from

the Veteran's use of tobacco products during service. See

the Internal Revenue Service Restructuring and Reform Act of

1998, 105 Pub. L. No. 206; 112 Stat. 685, § 8202 (July 22,

1998) (codified at 38 U.S.C.A. § 1103 (West 2002). The

change to the statute is applicable to all claims filed after

the date of the enactment, even if a claim for the same

disorder was filed prior to July 1998. See 38 C.F.R.

§ 3.300© (2009). Because the Veteran's current claim was

received after July 1998, and he had based his claim for

service connection on the use of tobacco products during

service, entitlement to service connection for nicotine

dependence, COPD with acute bronchitis, pulmonary emphysema,

and colon cancer as directly related to tobacco use in

service is precluded as a matter of law. 38 U.S.C.A. § 1103

(West 2002); 38 C.F.R. § 3.300 (2009). There is also no

basis for secondary service connection for nicotine

dependence, COPD with acute bronchitis, pulmonary emphysema,

and colon cancer as there is no evidence that a service-

connected disability caused or aggravated the Veteran's

tobacco use which then in turn caused his nicotine

dependence, COPD with acute bronchitis, pulmonary emphysema,

or colon cancer. VAOPGCPREC 6-2003 (October 28, 2003).

from: http://www.va.gov/vetapp/wraper_bva.asp?file=/vetapp10/Files2/1018973.txt

You stated here:

"Our evidence identifies Mr. XXXX PTSD as a contributing cause of death by Lymphoma, both directly(as much recent research implicates stress in carcinogenesis) and indirectly, through agravating his lung disease via heavy smoking."

However what does the veteran's death certificate show as the immediate cause of death and what contributing causes are given?

Was an autopsy done?

Can you scan and attach here your mother's last SOC denial that she has appealed to the VA?

(cover personal identifying stuff)

GRADUATE ! Nov 2nd 2007 American Military University !

When thousands of Americans faced annihilation in the 1800s Chief

Osceola's response to his people, the Seminoles, was

simply "They(the US Army)have guns, but so do we."

Sameo to us -They (VA) have 38 CFR ,38 USC, and M21-1- but so do we.

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