Seeking Feedback On Imo - Copy Attached

[free_spirit_etc]

Hi folks! I know it has been awhile! I am now scheduled for a Board Hearing and have the following IMO to support my claim. I am open to feedback to pass on to the doctor. Thanks.

Thanks for the replies. I deleted it. I didn't want to leave it up very long.

Edited August 30, 2013 by free_spirit_etc

[free_spirit_etc]

Well dang! I called the local Dept of Vet Affairs about being my VSO while I was still within my time-frame to appoint one. The guy clearly told me they could help me to develop my claim, and give me advice, but I didn't need to appoint a VSO - that this was really something I could do myself. He said I didn't need an appointment, that all I need to do is drop by when I needed some help.

I didn't drop by at that time because I knew I needed an IMO and I didn't want to go before I had that.

I dropped by today and the lady that guards the gate to the people who know things said they don't see people without an appointment. I said the guy I spoke with told me I didn't need an appointment. I didn't even know they gave people appointments. She said the guy who told me that was Guy A, and that he was a volunteer, and was gone for the day. She told me his hours. I said I didn't think I spoke to him because the person I talked to clearly told me not to come by in the middle of the day because they were closed for lunch. So she decided I must have talked to Guy B. She declared if the person I talked to told me about lunch - it had to be Guy B, and Guy B never would have told me I didn't need an appointment. I said the person I talked to certainly did tell me I didn't need an appointment, and I was under the impression they didn't make appointments. Then she decided maybe it was Guy C. She wanted to know what he sounded like. Hell! I don't remember! But she decided it was Guy C, and Guy C is kind of "loosey-goosey" and he never should have told me that. Then she proceeded to tell me that I "should have" appointed a VSO, etc. etc. etc.

I didn't get any help on that end. But she did give me their card and so I can call someone when I get back if something goes wrong at the hearing....

[free_spirit_etc]

Berta - On the Interstitial Fibrosis issue - the VA's own manuals list Interstitial Fibrosis as the MOST COMMON condition caused by asbestos exposure. (Yet I have read quite a few decisions where the VA docs will say the veteran's condition wasn't caused by asbestos because they didn't have asbestosis)

Likewise, the VA's own manuals say "Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer." (Yet I have read opinions that rule out asbestos as a cause of cancer because the person smoked -- and 90% of lung cancers are caused by smoking..therefore it is less likely than not, etc. etc. etc.)

To me the words INCREASED RISK suggest "at least as likely than not" But once they get into the argument of which factor increased the risk MORE, they can guide the cause to smoking.

M21-1MR, Part IV, Subpart ii, Chapter 2, Section C

9. Service Connection for Disabilities Resulting From Exposure to Asbestos

b. General Effects of Asbestos Exposure

Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed.

Inhalation of asbestos fibers can produce

fibrosis, the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis

tumors

pleural effusions and fibrosis

pleural plaques

mesotheliomas of pleura and peritoneum

cancers of the

lung

bronchus

gastrointestinal tract

larynx

pharynx, and

urogenital system, except the prostate.

Notes: The biological actions of the various fibers differ in some respects, in that

chrysotile products

have their initial effects on the small airways of the lung

cause asbestosis more slowly, and

result in lung cancer more often, and

crocidolite and amosite

have more initial effects on the small blood vessels of the lung, alveolar walls, and pleura, and

result more often in mesothelioma.

Specific effects of exposure to asbestos include

· lung cancer that

- originates in the lung parenchyma rather than the bronchi, and

- eventually develops in about 50 percent of persons with asbestosis

· gastrointestinal cancer that develops in 10 percent of persons with asbestosis

· urogenital cancer that develops in 10 percent of persons with asbestosis, and

· mesothelioma that develops in 17 percent of persons with asbestosis.

· Disease-causing exposure to asbestos may be

- brief, and/or

- indirect.

Notes:

· Current smokers who have been exposed to asbestos exposure face an increased risk of developing bronchial cancer.

· Mesotheliomas are not associated with cigarette smoking.

[Berta]

That is excellent info Free Spirit for many out there.

I LOVE the M21-1MR info and I have used copies directly from M21-1MR for some of my claims.

Here is a vet who was a smoker and who got:

“ORDER

The claim for service connection for COPD is granted, subject to the 
statutory and regulatory provisions governing the payment of monetary benefits.”

http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp12/Files2/1214325.txt

In part the decisions reads:

 “The examiner also determined that it is likely (more than 50% probability)
 that the Veteran's asbestos exposure aggravated his health above and beyond
 the damage created by long-term smoking.  The VA physician attached copies of recent
 medical literature to further support these conclusions.”
Also the BVA makes this uniquely worded probative statement:
“There are no adequate, negative nexus opinions of record.  This most recent VA opinion 

is not only well-reasoned, but it is also supported by medical research and shows a
 complete review of the pertinent facts.  This opinion is also supported by the 
private medical opinions of record.

Therefore, the positive evidence of record, combined with the Veteran's lay 
statements regarding the reported onset of his COPD, persuades the Board that the 
Veteran's current COPD is related to his active military service, to include his in-service asbestos exposure.  As such, the claim is granted.”
In this case the recent VA opinion overruled the past negative VA opinion.
This was a 2012 decision so the changes in nicotine claims of the 1997s was not an issue.
This case is more in keeping with my PTSD smoking point:

“ORDER

Service connection for the cause of the Veteran's death is 
granted.  

The appeal of the denial of entitlement to dependency and 
indemnity compensation under 38 U.S.C.A. § 1318 is dismissed 
as moot.”
http://www.index.va.gov/search/va/view.jsp?FV=http://www.va.gov/vetapp10/Files1/1007558.txt
Awarded in 010, this BVA case too circumvented the nicotine regulation changes in 1997.
In part:

“1.  Aspirational pneumonia, COPD, and hypertensive 
cardiovascular disease significantly contributed to 
the Veteran's death.

2.  The Veteran's aspiration pneumonia was due in 
significant part to both his COPD and his agitated 
state associated with his PTSD.   

3.  The Veteran's COPD was due principally to 
decades of heavy smoking, with COPD ongoing and 
progressing until his death.

4.  The Veteran's severe anxiety associated with 
his PTSD caused him to smoke heavily (more so than 
he would have otherwise) for multiple decades until 
his quit in 1992.  (His quitting was associated 
with his requiring oxygen support.)

5.  The Veteran's severe anxiety associated with 
his PTSD also significantly contributed to his 
hypertensive cardiovascular disease, and thereby to 
his death.”
A private doc's IMO opined:
1”.  PTSD caused or significantly contributed to his COPD 
by contributing to excess smoking, and COPD caused or 
significantly contributed to death.

2.  PTSD significantly contributed to his hypertensive 
cardiovascular disease, which in turn caused or 
significantly contributed to death.

3.  PTSD contributed to his aspirational pneumonia, 
which in turn caused or significantly contributed to 
death. “ 
The BVA stated :
“Any one of these causal avenues would in this case likely be 
sufficient to support service connection for the cause of the 
Veteran's death.  The presence of all three in this case 
results in the evidence clearly preponderating in favor of 
the conclusion that service connection for the cause of the 
Veteran's death is warranted.  38 C.F.R. § 3.12(a).  
Countervailing medical opinion evidence is not presented in 
the record, and hence no significant difficulties associated 
with weighing of conflicting evidence are presented in this 
case.”
This case is a good read and I recalled that even though my husband had been a 
light smoker,
 the VA did not use that against him when I won FTCA for his death.
 As a matter of fact VACO in DC 
 made the point that VA had not even attempted to put him into a non smoking program,
and he told VA in 1983, that he started smoking only because the cigs were government 
issued 
and always in his C rations in 1965.

Many of us here ad concerns when the AO IHD regs came out that smoking would be an issue 
VA could 
use to deny AO IHD claims.

It was never an issue however,and I bet every AO vet had cigs in their
 C rats in the Nam along 
with affects
 of the government 'issued' WMD ...aka Agent Orange.  

Edited August 31, 2013 by Berta

[carlie]

free,

The criteria for acknowledgement of representation at the

BVA level, has some strict rules you might want to check out.

JMHO

[free_spirit_etc]

free,

The criteria for acknowledgement of representation at the

BVA level, has some strict rules you might want to check out.

JMHO

Thanks Carlie! I will try to find the rules. I was under the impression that I could not appoint a representative now, without the VAs approval and showing good cause, as my time period had passed. I almost appointed a Rep within the time period, but didn't find one I wanted. One told me I didn't have a claim, one told me they could guide me but I could represent myself, and another told me I couldn't ask for a postponement because that would delay my claim for several years.

I really wanted to, and did, postpone my hearing. I didn't have an IMO yet because I was still trying to get a copy of my husband's discharge physical from the VA. I had been trying to get it for years, but was not successful. But I thought sure as I pay for IMOs, his discharge physical will suddenly appear in his file, and there would be something in there the Board would say the IMOs didn't consider, and lessen their probative value. So I didn't want to get an IMO until I got a copy of the physical or written confirmation that it could not be found. And I didn't want to go to the hearing without an IMO.

I don't know why the VSO told me a request for postponement would mean I would wait three more years for another hearing. I search BVA decisions, and it looked like they most often rescheduled in a few months. And that is what happened in my case. They rescheduled a few months later. And I requested another postponement based on the fact that I had still not heard back from the Privacy Officer on my request for my husband's discharge physical. So they rescheduled and then I got a letter that the physical is not in his file.

I just started thinking of getting a VSO again when the one doctor I wrote about writing an opinion on asbestos said she was a consultant for a VSO and could help me if I appointed them. I called them and they said to file the form with them and the VA, and someone would be there to represent me at the hearing. I did not want to file the form until I found out if I could appoint a VSO at this point. I don't want to get there and not even know if the VSO would be assisting me or not. So I asked the VSO, and she gave me a number to call at the BVA - but they didn't return my call.

At this point I have been working so hard on my appeal, I haven't taken the time to follow up. And actually, I won't need the asbestos medical opinion if I am granted the claim on in-service incurrence. So I was thinking of asking the judge if I can appoint a VSO if the claim is remanded.

I don't think they would deny the claim on the asbestos exposure issue yet. I think they would remand it.

But I am very hopeful that the claim will be granted on the more likely than not that his cancer started in service point.

[free_spirit_etc]

Berta, Here is an interesting claim where the veteran was stationed in barracks in 1943 that later had asbestos removed. Though the veteran also had a long smoking history, and years of post-service employment being exposed to asbestos, SC was granted for his death, based on information in M21-1MR (which states that exposure can be brief) and the fact that if it is not possible to separate the effects of a non-service connection condition from a service connected condition, the entire effect is granted to the service connection condition.

Though the VA examiners opined that his cancer was caused by his years of occupational exposure and smoking, and stated he wasn't exposed to asbestos in the service - the BVA remanded the claim when there was evidence that asbestos had later been removed from the barracks he lived in in 1943, and so they considered the prior opinions non-probative. Then the VA examiner opined that the asbestos the veteran was exposed to in 1943 was not disturbed and in good repair. The BVA rejected that argument in that though there was no evidence the asbestos was in poor repair, there was also no evidence that it was in good repair - and so the examiner made an assumption.

The BVA decided that though the veteran had much post-service occupational exposure, that the in-service exposure could not be ruled out. And they granted the claim.

http://www.va.gov/vetapp12/Files3/1217060.txt

(I hope I get that judge!)

Now that I think about it, it looks like it is almost easier to get SC for asbestos exposure, if you smoke, if you have post-service occupational exposure.

If you only have in-service exposure, then the VA examiners build their opinion on the claim that since smoking causes 90% of lung cancer, the effect of asbestos is less than 50% (thus, less likely than not). But if you have post-service exposure - then they build a claim that the cancer was more likely caused by the combination of smoking and the post-service asbestos exposure since the post-service exposure was more substantial. Once they have created an opinion that asbestos and exposure and smoking combined caused the cancer - it seems easier to convince the VA that the in-service asbestos exposure can't be reasonably separated from the post-service exposure, than it is to argue that asbestos exposure contributed to the cancer, when the VA examiner has said it did not.

I think they use faulty math in those arguments though. The veteran should not have to prove that asbestos was 50% responsible for their cancer. They should only have to prove that it is more likely than not that it played SOME role, even if that role was less than 50%.

Edited August 31, 2013 by free_spirit_etc