I Had My Hearing - Ugh!

[free_spirit_etc]

I went to my hearing in Washington armed with my two IMOs and my arguments. I actually thought my IMOs would get service connection for my husband's lung cancer. I also contacted experts who specialize in industrial medicine or toxicology to see about getting an opinion if it was more likely than not asbestos exposure had contributed to my husband's cancer.

I had several doctors respond - but one said she worked as a consultant with a VSO - and that she could help me if I signed PO to them. I never got an answer from the BVA as to whether I would be allowed to appoint a VSO, so I figured if I didn't get approved on inservice onset, there should be enough to at least get a remand on the asbestos issue. That would give me time to see if an IMO on the asbestos issue was even necessary.

The guy at the desk was very nice, but he asked why I didn't have a VSO, and I told him - and he called that VSO and had them bring a paper down for me to sign. So I signed to have the represent me.

I don't know if I made a big mistake -- but I left the hearing feeling horrible. And I am not even sure how to work with a VSO at this point.

The judge was very nice, by the way. But I didn't get along too well with the VSO. He didn't seem to have much interest in anything I brought to the hearing, what my arguments were, etc. I finally got him to take a look at the IMOs, but I am not sure how well he read them.

He kind of dismissed them as "theories written by people who had not seen my husband."

The VSO thought it would be better to try to show boots on the ground in Vietnam. I told him my husband didn't have boots on the ground. But he said you don't know what the records would show. I think my husband would have known whether he was in Vietnam or not. It doesn't seem like something a person would forget. He was in Guam at that time - but the AO stuff on Guam is not presumptive.

While I appreciate the fact he wanted to make sure everything was covered, by checking out boots on the ground, and other possible connections, I don't understand why he kept dismissing the two claims we have presented all along - inservice incurrence, and / or related to asbestos exposure. He also wanted to see about pursuing contributing factors listed on the death certificate - Respiratory failure, pancreatic mass, and jaundice. I don't actually see how those would apply because they stemmed from his lung cancer. He also said my husband wouldn't know whether he had been exposed to asbestos or not.

Anyway, I got totally rattled and upset and was crying right before the hearing. The VSO did say he would let my submit my two IMOs, but that was all. He didn't want me to submit the article one of the doctor's sent me to submit. He kept telling me the judge might not accept my "theories." I don't know why he kept referring to the IMOs as theories. They were opinions of competent medical professionals.

Then he finally let me try to explain the "theories" -- but I couldn't quite get him to understand. I read him the part of the doctor's report that explained that they measure tumor growth rate based on a tumor's "doubling time" or how long it takes a tumor to double in size. It has to double a certain number of times to reach 1 cm, and a certain number of times to reach 3 cm. (the size of my husband's).

So he says "Is there evidence in the record that your husband's tumor was one of these double time tumors?

I tried to explain that there is no such thing as a doubling time tumor. Doubling time is how they measure tumor growth. He rolled his eyes. So I tried to explain it again, and THOUGHT I was getting the point across. Then he asked what my training was. I told him a teacher. He told me I had to watch trying to sound like an expert. He said I couldn't sound like an expert. I didn't plan on trying to tell the judge I was an expert. I hadplanned on telling the judge what the experts had said (backed by hard copies of what they said).

Anyway, we weren't getting along well. I agreed to let him ask the judge to hold the record open. And I don't mind him exploring other issues. But I worked so hard to put together this claim and he acted like my IMOs (theories) didn't even matter.

So right before we went over to the hearing, his assistant reminded me that I couldn't talk like an "expert." So we were going in the hall, and I asked the VSO what to do. I said, am I not supposed to answer questions about the cancer? I am not clear on exactly what I am supposed to say or do. And he shot me a look and told me he wouldn't answer that in the hall. So off we went to the hearing room, and I was totally confused.

While we were waiting for the judge the VSO asked me "Is there evidence that your husband's cancer was 1 cm when it started?" I said it wasn't 1 cm when it started. He rolled his eyes again. I know I was aggravating him. But it wasn't 1 cm. I told him it started as a single cell and grew. It eventually, over time, grew to 3 cm.

Then he asked me as part of the questioning what types of jobs my husband had in the military. I said electrician and First Sergeant. That earned me another eye roll. He told me First Sergeant was a rank not a job. So he asked me AGAIN and gave me another chance to get it "right." What was your husband's first job in the military?" I said "Electrician." Then he asked if my husband had any other jobs. I said First Sergeant." I explained that was his job title. I wish I would have had his DD214 with me to show him 8FOOO - First Segeant - 15 years.

Anyway, I was so rattled and shook up, I ended up looking totally stupid the whole dang time.

I would have to say the judge was very nice and very respectful. The judge even asked me about my request for records for an IMO. He asked if I had received them. I told him I was trying to get a copy of my husband's discharge physical before I got an IMO because I wanted to make sure that was given to the doctor if it was available before they doctor issued an opinion. But I told him the VA couldn't find the discharge physical and so I went ahead and got the IMOs. He picked up the papers and asked if those were the IMOs and I said yes. He asked what the doctors said. Then I got rattled again. I sure didn't want the VSO rolling his eyes at me again. And I wasn't quite sure how to answer. I told him they said it started in the service. And I told him one of the doctors had called a couple of times to discuss it.

The judge seemed positive about that. He even told me about the three prongs that need to be met and said the IMOs might provide the nexus.

Thank God somebody appreciated the IMOs! And somebody thought they might provide the nexus! (I guess if you have to pick between the judge or the VSO supporting your claim, it is better to pick the judge).

Anyway -- my hearing didn't go all that well. I have no idea what to do to work with the VSO. I end up feeling like an idiot when I try to talk to him. I hope that if the judge sees an nexus, he will still rule in my favor even if the VSO doesn't want to argue the point of in-service incurrence.

But he wants to take my claim in a whole different direction now. And I don't know what to do.

Edited January 28, 2015 by free_spirit_etc

[jbasser]

Why did you not retain an ATTORNEY for this issue?

Dont let them force a VSO on you. You need time to go over the claim with the VSO.

I really dont feel good about this issue.

J

[free_spirit_etc]

71M10,

I actually thought of that. I thought of just writing the BVA and telling them I want to revoke the VSO POA I signed and decide the case on its merits. But I wasn't sure if that would look worse than just letting it sit. The judge did thank the VSO for signing on at the last minute in order to "help" a widow. And I guess it was a good thing he asked to hold the case open for 90 days to give him time to submit more evidence. And I really don't mind him trying to explore other avenues to entitlement. But I didn't like him just dismissing mine and treating me like an idiot.

And I feel like we wasted a whole hearing, because he didn't want to argue, or have me argue, inservice onset or asbestos exposure -- the two main things we have developed in the claim. I did feel like I had enough evidence for the claim to be granted on direct connection, and at least a remand on the asbestos exposure (secondary connection).

I honestly don't think he will get anywhere with the boots on the ground theory. We already explored that to see if any of the places my husband served would be presumptive AO. The VSO asked me. If you can go two blocks to get somewhere or three blocks to get somewhere - which would you do? I said two blocks. HE said the boots on the ground it the two blocks. I agree it WOULD be two blocks IF my husband served anywhere that had presumptive AO. But we have already gone three blocks. We are at the hearing, not the beginning of the claim.

It was so odd that he was dismissing the two strongest parts of the claim - and thinking of trying to build something from the contributing causes of death listed on the death certificate. I do understand that can sometimes be important. But I think all the contributing causes link to my husband's cancer.

He wasn't real supportive of the asbestos issue. He said my husband or the buddies who provided buddy statements wouldn't know if they were exposed to asbestos. For gosh sakes - one of the buddy statements specifically stated that shortly after my husband left the field (stopped being an electrician) they all found out that many of the buildings they had been working in had asbestos, they had to get asbestos safety training, and chest x-rays. We submitted evidence that the OSHA asbestos standards did not apply to the construction trades until 1986 and the initial Air Force standard for asbestos management was published in 1998.

He said that the doctor (the one I had spoken to) said the standard thing someone has when exposed to asbestos is pleural plaques. I told him my husband had a diagnosis of interstitial lung disease. He asked when it was diagnosed. I said 2 years after retirement. So he wasn't impressed.

[free_spirit_etc]

jbasser,

I called an attorney last year. I was just bumming out about getting an IMO and thought I would be willing to pay an attorney to just take over the claim and do that for me. The attorney I called said if my husband was not in Vietnam or did not have his cancer diagnosed in service, I didn't have a claim.

Personally, from reading the BVA decisions, I think it is easier to convince a judge that you have a case than it is to convince a VSO or attorney that you have one.

I WAS encouraged when the judge asked if I got an IMO, and he seemed to perk up when I said I did. He asked what they said. But I faltered in explaining it because I was trying not to aggravate the eye rolling VSO who warned me not to talk like an expert. So I just fumbled around about it. But the judge did tell me there are three prongs to proving a case - A disability, incurrence in or aggravation by service, and a nexus. The judge put his hand right on my IMOs and said "These might provide the nexus." The judge looked over at the VSO, but the VSO didn't say anything.

I think what we probably should have done was spent the time that morning with the VSO getting familiar with the arguments I had with me to present - so he could help me present THOSE to the judge - and then asked to hold the record open for 90 days to develop the case for more evidence.

Despite him telling me that the judge doesn't even have to accept my "theories" I think the judge has to take my IMOs into consideration. Since I have the IMOs it seems like he would either have to grant the claim, remand it, or get another expert opinion. But he would need to find flaws in my IMOs before seeking an expert opinion or further development. I don't think he could just reject my IMOs as (in the VSO terms) "theories by someone who didn't see your husband" and deny the claim. And any expert opinion the board would seek would also be a "theory by someone who didn't see my husband." Granted, if you are claiming for a disability in which a physical exam would provide useful information, than an opinion by a doctor who examined you would be stronger than an opinion by someone who did not. But I don't think a physical exam would be necessary for an expert to offer an opinion about when someone's cancer started. And one of my doctors actually pointed out that he did bench research working with cell lines and analyzing cells survival curves and growth rates. I think that would pack more of punch than physically seeing my husband for the type of opinion that it was.

[free_spirit_etc]

Reddit - Good luck with your hearing! I am probably not a good person to advise you on what to discuss. LOL

I would probably take a synopsis of what you think your strongest evidence is.

I wish I would have kept my act together enough to convince my VSO to help me present the arguments I already had, and then ask to additional time to submit more evidence.

[free_spirit_etc]

Berta,

We had already explored the Guam AO issue several years ago. In fact, I emailed back and forth with Van Sanderson and a few other vets about the issue. A couple of the BVA decisions have been promising, but they haven't set a precedence on the issue at all. I don't remember the name of the Congressman that kept working to get information about Guam declassified - which would help a lot.

We did mention possible herbicide exposure in at least one of our appeals. I wanted to make sure it was on the record that we at least alleged herbicide exposure, in the event the military decides to admit that AO was used on Guam. It might not hurt to get it on the record again.

I did find an interesting article about asbestos and pcbs on Andersen AFB last night.

http://www.andersen.af.mil/news/story_print.asp?id=123339500

"3/11/2013 - ANDERSEN AIR FORCE BASE, Guam -- The 36th Civil Engineer Squadron Environmental Flight is currently working on containing contamination to protect the environment at Site 14 on Andersen Air Force Base.

The site, located in the southeastern corner of the base, was contaminated with harmful substances such as polychlorinated biphenyl and asbestos since the 1970s when it was used for a construction waste site. The cleanup effort is estimated to be completed later this month."

This might help support our claim that my husband was exposed to asbestos in Guam in the early 70's.

[free_spirit_etc]

On a brighter note, I have been able to look up some of my judge's decisions. He is very thorough (and that is one thing my VSO said when I was leaving.) So I am glad I got a strong IMO that gave lots of details. I don't think a somewhat vague more likely than not opinion would fly with this judge, unless he was already convinced and just needed someone to say that in order to grant the claim. And though he has denied a lot of claims, he has also granted claims on the same "theory" that we have submitted - that even though cancer was diagnosed after service, it was present in service....especially if it was diagnosed shortly after service - AND the veteran / widow provided an IMO.

Many of the widow claims that were denied were from widows of veterans who had been out of service for a long time who were trying to connect SC issues to the the condition that caused their death. But most of these had no IMOs, or just very weak ones.

It looks like even if they had a very general IMO where the doctor just gave a brief statement, he contacted the widow or doctor to request more details before deciding the claim. Most often, they did not provide additional details.

I understand he is a thorough judge. But I do believe he is a fair judge.