At A Loss

[kirk192]

7 years ago I was diagnosed with a brain tumor. I was 9 years out of service, however, there where 3 other men from my Team of 40 with the same afliction. One has since passed. I filed my claim in March of 07.

It was denied 6 months later. I apealed and it was again denied. I filed suit in the court of veterans appeals and it was remanded with specific instructions to have me undergo another C&P exam. The BVA said that the "respectfully disagree" with the court order and simply denied the claim. However, they gave me specific reasons as to why the claim was denied. I filed suit again, and, again it was remanded. I have since submitted medical information that contridicts thier admitted lay opinions as to why my claim was denied. First submission was directly to the VA RO, I even got them to sign confirmation of receipt. That information was "lost" with no explination. I then sent it all myself with signature confirmation. It was received.

I called the AMC several weeks later and they told me that they where waiting for my file from my Regional office. I went to my regional office and they told me my file was at the AMC. I went to the DAV and they said that my file was at AMC and refused to call and verify. Have called my Senator and gotten the standard "we are looking into it".

Anyone have some suggestions?

[Berta]

Gee-I realized the BVA decision was dated Nov, 2011 and then re read your posts:

"I have filed suit and it has been remanded based on the non compliance of the original court order. All of the pertenent information has been submitted and received. however nobody seems to be able to tell me where it stands, or why after 3 mos. there has been no movement."

WHEW-I am so glad !

"Posted Yesterday, 09:48 AM

I have gotten a response from the VA who after a week and a half has gotten a response from AMC. AMC says they are going to "research it". I guess I will wait a week then go to the top."

The AMC has the reputation of being the Black Hole for claims.

Are you comfortable with giving us your CAVC docket number for the joint remand?

CAVC info is public and we could read the remand on line.

Did the SCUBA or Drager Unit ever involve prolonged exposure to vinyl chloride ?

[Berta]

I went over your BVA decisions carefully and hope others too will chime in here.

This BVA decision was unlike anything I have seen since the VCAA defined and established our rights as claimants in 2000 .

I feel the BVA gave no medical rationale to disregard the buddy statement as to your inservice tremors:

“According to the National Institutes of Health, normal aging and low blood sugar are two common causes for hand tremors. Stress, anxiety or fatigue can result in postural tremors, though these tremors will go away when the stressor or fatigue is alleviated. However, brain damage can also be the reason for a hand tremor. A stroke or brain tumor, which can disrupt normal brain function, are also possible causes.”

http://www.livestrong.com/article/18976-causes-hand-tremors/

“Cerebellar tremoris caused by brain damage from a stroke, tumor, or degenerative disease, such as multiple sclerosis. Chronic alcoholism can also cause cerebellar tremor. Cerebellar tremor is most pronounced in the hands during a particular action, such as reaching out for something or touching the tip of your nose. Cerebellar tremor may also be called intentiontremor. “

http://www.localheal...d-tremor/causes

Brain Tumors

• According to The Children's Hospital of Philadelphia, each year approximately 2,000 children in the United States are diagnosed with a brain tumor. The type of brain tumor, size and location will produce different symptoms. A brain tumor in the cerebellum, or back of the brain, can cause hand tremors in children as well as other symptoms such as headaches, difficulties walking, and vomiting in the morning without nausea.
  
  
  http://www.ehow.com/...-children_.html
  
  If your tumor is parietal, that rests just over the cerebellum at the back part of one's head.
  
  Tremor-Causing Injuries
  
  • A physical injury to the motor center of the brain or a stroke can contribute to hand tremors. Brain tumors can press against the motor center and cause tremors. Injuries to the nerves of the arm or shoulder can also create muscle weakness and cause hand tremors.
    

  http://www.ehow.com/...nd-tremors.html

  Your BVA decision states:

  “The first evidence of any problem appears in October 2006, nearly a decade after the Veteran's active service. “

  However this BVA decision contradicts the medical facts involving this type of tumor:

  However, the VHA oncologist also noted that small

  cancers and pre-neoplastic lesions can remain dormant for an

  extended period before growing aggressively and, therefore,

  concluded that it was "reasonable" to regard the tumor as

  having been present during the Veteran's military service in

  1991.

  In summary, and affording the Veteran the benefit of the

  doubt, the evidence suggests that the he has low-grade

  oligodendroglioma which had onset during service.

  Accordingly, the Board concludes that low-grade

  oligodendroglioma was incurred in service.

  ORDER

  New and material evidence has been presented to reopen a

  claim for service connection for low-grade oligodendroglioma

  with seizures.

  Service connection for low-grade oligodendroglioma with

  seizures is granted.

  Source: http://www.va.gov/ve...es2/1015944.txt

  The BVA stated in your case

  :

  “the medical opinion of Dr. E.K. provides limited evidence against this claim, clearly indicating that the Veteran received multiple neurological examinations during service, more than would a typical servicemen during his military service, due to nature of the ….” The IMO was poorly prepared. A BIG problem for the claim.

  “In a February 2007 letter, the Veteran's neuro-oncologist, Dr. F.H. states generally, while he and his colleagues are not sure what the cause of the Veteran's brain tumor is, it may have been caused by his use of an oxygen re-breather in service. “ He didnt give a full medical rationale."may" or "May not" statements are too speculative in IMOs and have no probative value.

  The VA Neurologist (not an oncologist) gave no medical rationale or treatises, or medical abstracts to bolster her opinion of August 2010.

  “Finally, she stated that there is no evidence that she can find that would support the Veteran's theory that toxins from the re-breathing device caused chromosomal changes leading to an anaplastic brain tumor. “

  This begs the question, what Drager unit toxins could have caused the tumor?

  How were the units cleaned? Was the cleaning fluid a potential toxin or carcinogenic?

  Were the paper glass fibre fllters carcinogenic after long term use in the gear?

  Where was the diving done? Is it a Superfund site now?

  Was the diving predominately done in water that also catched run offs from toxins from factories, farms, etc that could have been carcingens that lingered on the wet suits?

  Problems arise when a claimant states a potential theory of entitlement ,yet, a claimant should raise EVERY single potential theory of entitlement.

  “In their joint motion for remand, the parties argue that the examiner did not provide a sufficient rationale for her opinion; specifically, they argue that it is unclear whether the examiner's conclusions were the result her own knowledge, or whether she had researched medical literature and her conclusions reflect the limits of current medical knowledge. They have requested that the case be remanded so that the examiner can clarify her opinion. The Board respectfully, disagrees. “

  Would the BVA disagree that the actual VHA oncologist , as within the above cited BVA decision, should in fact be requested to prepare an opinion?

  “As a factual determination, the Board finds that there is sufficient evidence to conclude both that the examiner's opinion is based on the limits of current medical knowledge concerning the causes of brain tumors and that a remand would not provide any additional information that would provide any possible basis to grant this claim. Further, the Board finds that neither point cited by the parties of the joint motion is required to make a medical opinion "adequate" in this case. Simply stated, the parties of the joint motion are adding additional requirements to a VA medical opinion that are simply not required under VA law, particularly in light of the facts of this case. “

  What “limits” of medical knowledge on etiologies of brain tumors are they citing?

  Training Letter 07-04 is referenced by the veteran and by the BVA. Although the TL does not specify brain cancers in divers,

  the VA didnt SC IHD in Vietnam veterans until many decades after their service (Nehmer decision)

  But Training Letter 07-04 is a moot point for this claim.

  “The Board needs more than a theory from the Veteran to remand this case for a medical opinion, which it does not have. “

  You had evidence (the buddy statement) .

  “Simply stated, in this case there is even the absence of any speculative article from even nonmedical sources indicating some remote possible connection between an oxygen re-breather and cancer. We are dealing with a theory of entitlement with no medical or factual foundation at all. “

  I feel the buddy statement ,supported with above references as to the tremors, should have been given more weight.

  You have some links above that an IMO doctor might well be able to use to support the inservice nexus.

  On remand other theories of entitlement could be raised, such as was diving done in an area that was contaminated with run offs of cleaning fluids, fertilizers, herbicides , or any other toxins that were carcinogenics.

  Where was the diving mainly done?

  “On review of the evidence in this case, notwithstanding the Board's prior determination, the Board finds that a medical opinion should not have been obtained in this case in the first instance, as the evidence indicating that the disability at issue may be associated with the veteran's service is simply too speculative.”

  I think that is a very arbitrary and capricious opinion from this BVA lawyer.

  Then again- Hell the VA thinks most of our claims are mere speculation until we provide them with evidence.

  As a claimant myself I found that NOTHING is impossible . the BVA employs lawyers, who are not doctors, and I have never seen this type of BVA unfounded rhetoric in a BVA decision since the years prior to the VCAA.

  I won 2 SC claims recently whereby the diagnoses of 2 disabilities (due to AO) never even appeared in my husbands SMRS or his Medical records.NOTHING is impossible.

  “While the Veteran has claimed that other Navy SEALs have developed brain tumors, suggesting that there is something about the nature of their service that has caused their illness, he has unfortunately provided neither VA nor his treatment providers any information about these individuals such as their names, dates of service, and the type of brain cancer from which they allegedly suffered. Without such information, the Veteran's claims are, as the examiner stated, "speculation only." A general claim that other SEALs also developed brain cancer, therefore, my brain cancer was caused by service (a "cancer cluster argument") is too vague for the Board to be able to develop further, despite the potential significance. "The VA's 'duty' is just what it states, a duty to assist, not a duty to prove a claim with the claimant only in a passive role." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). VA cannot be expected to obtain the medical records of former Navy SEALs to see how many have brain cancer or perform scientific studies on the long term side effects of equipment issued by the armed services without some evidence, which is simply totally lacking in this case. “

  With that information, the H VAC might request input from the IOM. It also could lead to support for your claim if any of these vets have found the nexus factor,via an IMO or research.

  “In this case, the examiner provided a rationale, citing the problem the Board has noted above: there is nothing that supports the speculation that the Veteran's brain tumor was caused by service. We cannot ask the examiner to provide any more "supporting data" if there is simply no supporting data to be found. We are asking the examiner to prove a negative. “

  The internet has thousands of medical studies and treatises that do not support many nexus factors,such as http://www.bmj.com/c.../bmj.d6387.full

  (after all the hoopla that cell phones cause cancer, this study says they dont.)

  “even if we ignore the findings of the VA medical opinion, the case must be denied in light of the total non-probative value of the evidence the Veteran has submitted to support his nexus. “

  I feel the buddy statement was highly probative and that the IMO was very poorly prepared and a better IMO (following our IMO criteria here at hadit) might certainly help this claim succeed.

  This claim needs more leg work but you are keeping it in the appellate process and that is great!

Edited August 17, 2012 by Berta

[kirk192]

Gee-I realized the BVA decision was dated Nov, 2011 and then re read your posts:

"I have filed suit and it has been remanded based on the non compliance of the original court order. All of the pertenent information has been submitted and received. however nobody seems to be able to tell me where it stands, or why after 3 mos. there has been no movement."

WHEW-I am so glad !

"Posted Yesterday, 09:48 AM

I have gotten a response from the VA who after a week and a half has gotten a response from AMC. AMC says they are going to "research it". I guess I will wait a week then go to the top."

The AMC has the reputation of being the Black Hole for claims.

Are you comfortable with giving us your CAVC docket number for the joint remand?

CAVC info is public and we could read the remand on line.

Did the SCUBA or Drager Unit ever involve prolonged exposure to vinyl chloride ?

Berta I would very much like to send you all I have prepared and submitted. we are going in circles with the same info. meaning you are telling me what I have already done

[Berta]

“Berta I would very much like to send you all I have prepared and submitted. we are going in circles with the same info. meaning you are telling me what I have already done "

Then I assume you already have the American statistics on incidence rates this form of cancer, ….(very startling info compared to the 3 men in your team)

You have carefully researched where the team did the most diving, to see if this was a contaminated site, you have the detailed specifications for the Drager Units, as well as researched anaplastic oligodendroglio thoroughly,(the DNA component you mentioned is very significant-I researched that too )

you have accessed similar cases at the BVA, and if you dove in the Gulf or Kuwait tributaries you already know how toxic those waters were,

and have submitted anything at all that could advance your claim to the BVA.

I got the impression from the BVA denial that they only had the IMO you sent to them and the buddy statement.

It would therefore be redundant for you to send to me what you say is the same information I am 'telling you' about. I have spent almost 9 hours so far researching your claim and all of the factors it involves.Thanks for letting me know you already have this info.

I dont handle claims issues off the hadit board and I am sure your lawyer has questioned VA already

as to why they did not consider

“all I have prepared and submitted.”

Men and women this veteran's case is important for 2 reasons

....

because not only is the incidence of this type of cancer alarmingly unusual in this vet's other SEAL teammates,

I feel the BVA for some bizarre reason, crapped all over his rights,in their denial and if they do that to any one of us, they could do it to more of us.

However I will withdraw further comments on this. Others will chime in and help you.

.

[kirk192]

Thank you Berta. We are on the same page. One more question. What does the BVA, VA, AMC consider "Expeditious" as court remand claims are supposed to be handled expiditously?