Substantiating Asbestos Exposure

[free_spirit_etc]

I decided to take some time to continue to build my asbestos claim - since the judge granted us 90 days to submit more evidence. The RO pretty much conceded that my husband was exposed to asbestos. The SSOC case states "During the pendency of his claim and appeal, several statements were submitted from fellow servicemembers, that confirms the veteran's exposure to asbestos."

But I am assuming that the Board does not have to accept that concession - and so it would be best to make sure I have enough information submitted to show that it is more likely than not my husband was exposed to asbestos.

I did point out in my appeal that the RO was in error in using a 2002 VA opinion in denying the claim, as the VA examiner had made the assumption that my husband was not exposed to asbestos in forming his opinion. The examiner stated my husband was not a part of any medical surveillance, or occupational screenings – and stated that my husband didn’t have any unique medical conditions that could be attributed to asbestos. (My husband does have a pathology confirmed diagnosis of Interstitial Fibrosis – and when you get right down to it – lung cancer IS a unique physical condition that can be attributed to asbestos.)

We have:

1. My husband's own statements that he was exposed to asbestos, and the types of work he did that created the exposure.

2. Statements from 4 individuals who also worked in the electrical shop with my husband. Two of those statements specifically refer to the fact that after my husband left they found out they had been working with asbestos and stated getting hazmat training, chest x-rays, etc.)

3. Evidence that there were no OSHA standards for permissible levels of exposure to asbestos prior to 1975. (My husband was an electrician from 1970 – 1983).

4. Evidence that the OSHA standards for the construction industries were implemented in 1986.

5. Evidence that the initial Air Force standard for Asbestos Management was dated December 1988.

6. A portion of an asbestos survey at the last base my husband served as an electrician state-side which showed significant problems with asbestos in many of the buildings.

7. An internet posting by an asbestos abatement company that showed buildings at Andersen AFB they removed asbestos from.

8. Evidence that electrician is a career field which is frequently cited as being exposed to asbestos.

One thing that doesn’t help the claim is my husband turned in a letter from a Col. he had written to. He specifically asked about asbestos programs. But she just responded that the Air Force did have Occupational Health Programs in existence at that time. And she stated each base should have followed procedures, and she would assume that my husband was not exposed to any hazards above the occupational exposure limit if he was not part of any medical surveillance.

I pointed out in my argument (that I haven’t given the judge yet) that though she said they had Occupational Health Programs in existence, she didn’t state they had specific programs for asbestos in the 1970’s early 80’s. And I also pointed out that though she said she would assume that he was not exposed above the occupational exposure limit – that there were NO occupational exposure limits set for the construction industry prior to 1986.

I wonder if it would be good to get further clarification from her (or whomever had replaced her) though – and write her a letter asking for clarification.

i.e. You said that there were Occupational Health Programs in existence at that time. Could you tell me if those programs specifically covered asbestos?

You stated that you would assume my husband was not exposed above the occupational exposure limit. Could you tell me what the occupational exposure limits for asbestos were from 1970 – 1983?

Or should I just leave that alone – and include my argument concerning that letter?

I also sent this to the bases where my husband was stationed when he was an electrician:

I am seeking this information under the Freedom of Information Act.

I am seeking releasable information regarding asbestos management plans or asbestos operating plans for XXX XXX Base.

I am specifically seeking the following information:

1. Any asbestos management plan for XXXX Base in effect in the years 19XX– 19XX.

2. What year the initial asbestos management plan at XXXX Base was implemented.

3. Whether Electrical System Craftsman (3E071) were included in any medical surveillance, occupational screening, hazmat training, or any other such programs once the plan was implemented.

4. Whether medical surveillance, occupational screening, hazmat training, or other safety programs included workers with past probable occupational exposure, or if they only included current and subsequent workers? (i.e. if the employee had previously, but no longer, worked in the job classification once the plan was implemented, would they be included in such programs).

I am willing to pay fees associated with the above search. However, I ask for a waiver of such fees as I am seeking information to help establish the likelihood of my (deceased) husband being exposed to asbestos for my claim with the Department of Veterans’ Affairs.

Thank you very much for considering my request,

Any other ideas? And yes… I know… I know… IMOs – but I need to convince the Board that is more likely than not my husband was exposed to asbestos before I can convince them that the asbestos exposure can be linked to his cancer.

Edited September 9, 2013 by free_spirit_etc

[harleyman]

I also think Viceroy Cigarettes used a fiberglass filter back in the mid sixty's.

The SSOC case states "During the pendency of his claim and appeal, several statements were submitted from fellow servicemembers, that confirms the veteran's "

The VA is conceding exposure the BVA will also concede the exposure, Especially if your husbands MOS as an electrician is probable for exposure. I think you are good.

And she stated each base should have followed procedures, and she would assume that my husband was not exposed to any hazards above the occupational exposure limit if he was not part of any medical surveillance.

I would not ask for a clarification from the Col. as you may get more of an answer that what you want. Right now the Col. is admitting there was exposure do to occupational MOS. If you don't know the response, I would not touch that topic with the Col. any further. They have a saying among trial lawyers, don't ask a witness questions you aren't prtty darn sure of what they will say as their answer

I would encourage you to continue with your FOIA requests as they could provide added information in support of your Appeal.- Harleyman

Edited September 9, 2013 by harleyman

[free_spirit_etc]

The word 'Interstitial 'is often a medical catch -all term.....

Did any med rec of your husband define this term as non-idioathic interstitial fibrosis?

No. The original chest x-ray said There is diffuse interstitial disease throughout both upper lobes, with a predominance in the lingual and middle lobe. The appearance is reticulonodular.

Impression: Bilateral upper lobe reticulonodular interstitial disease. The differential diagnosis includes sarcoidosis and pneumoconiosis.”

The pathology report says There is mild interstial thickening and pneumocyte hyperplasia. Numerous intraalveolar macrophages are noted. There is no inflammation. There are no viral inclusions or granulomas.

Final Diagnosis – Interstitial Fibrosis, Mild

Was he autopsied? Sorry if I asked that already.

No. I didn’t get an autopsy. But I was wondering – the pathology report didn’t say anything about asbestos bodies – Would they have automatically looked for those? Or do they have to do a special test?

I would expect a VA examiner to try to build a case on why my husband’s Interstitial Fibrosis was not asbestosis. It seems like they try to say that if they don’t have another asbestos related lung disease, then it could not have caused cancer. So they build a case for the second point and act as if that proved the first point.

Asbestos cases do seem to be cases they seek medical opinions on, even if the vet submits an opinion. But then, again, a majority of the cases I have read at the BVA site have been cases of people claiming for COPD and emphysema – and trying to link it to exposure with some pretty weak (or reportedly weak) opinions from treating physicians. And there are quite of few people who file claims who don’t even have a diagnosis yet. They just have symptoms.

So again – there are lots of cases where the VA doctor says no – and the vet submits a couple articles that say X can cause Y. Those claims don’t do very well.

As far as cancer cases, I have seen quite a few of those attributed to smoking. Though I do understand the reasoning, I still think it is based on some faulty logic. Of course, they report that 90% of lung cancer is caused by smoking – implying that means only 10% could be caused by something else – and 10% is less than 50%. Or smoking increases your risk of cancer by X, and asbestos increases your risk of cancer by Y – and since X is bigger than Y, X must have been the cause and Y didn’t matter.

I don’t see where it should be necessary to show that asbestos played a bigger role than smoking. It would seem like you would only have to show that it is more likely than not that asbestos played some role. The standard shouldn’t be to prove it was over 50% responsible for the disease. The standard should be that it is more likely than not that it contributed.

The Environmental Protection Agency, The Agency for Toxic Substance and Disease Registry, The American Lung Association, The National Institute for Occupational Safety and Health, the American Cancer Society, and the Surgeon General, and multiple other agencies report over and over again that the risk of cancer from smoking and asbestos exposure is greater than the risk of either one of those factors by itself. Most studies show the risk is multiplicative; not additive. Their statements are established medical principles that have been confirmed in multiple studies. So, to me, when the VA examiners are stacking the cards a different way to deny claims, they are going against well-established medical principles to do so.

It would seem almost like as much as is known about the synergetic effect of smoking and asbestos exposure, they would have to give an opinion that fully articulates why this well established medical principal does not apply in the veteran’s case to deny the claim. But I know that is not the way things work.

And then, again, a lot of the vets didn't have IMOs.

Edited September 10, 2013 by free_spirit_etc

[Philip Rogers]

"The standard shouldn’t be to prove it was over 50% responsible for the disease. The standard should be that it is more likely than not that it contributed."

Those two sentences makes no sense to me. Isn't "more likely than not, 51% or more?" It should be "as least likely as not" meaning 50/50 and the win goes to the claimant. jmo

pr

[Philip Rogers]

As for the Kent cigarettes and mesothelioma, my Mom died probably as a result of smoking them. I hear the manufacturer generally settles w/o accepting liability. I'm just waiting for me to get it. I started smoking Kents, in 1955, by stealing them, from those little dishes they kept them in, on the coffee tables, back in the day. She and my father worked for Kent, then, and Kent would either give them free cigarettes or sold them at cost to employees, so they could share them w/their friends, when they entertained, at home. Nice company!!! Fortunately I quit in 1977 but still need to watch my lungs. All the manufacturers knew the dangers but felt the profit was well worth the loss. Mesothelioma is fatal w/no cure. jmo

pr

[Berta]

The bio markers for asbestos on autopsy are usually the presence of pleural plaques and even fibers still in the lungs as stated within this abstract:

http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1916059/

This article compared X rays with autopsy findings and they were consistent in their results of pleural plaques revealed at X ray.

http://www.ncbi.nlm.nih.gov/pubmed/2641666

If your husband had chest X rays from the VA and they were opined on by a VA doctor....I would get a second opinion on that if the narrative of the X ray did not reveal plaques or any fibers.

VA interpreted 2 X ray results for my husband and in both cases the VA interpretation was wrong.

This article briefly mentions the fibrosis in lungs that may or may not indicate asbestos damage:

http://www.ncbi.nlm.nih.gov/pubmed/21534088

This is the stuff for IMO docs.

I don't see clear evidence of asbestos in what you have posted from the Pathology report , but I am not a doctor.

You might want to email Dr. Bash....his site and contact info are here in Meg's Question about Dr. Bash today, to see what he, as a NeuroRadiologist, would consider as bio markers for asbestos, in your husband's case.

[free_spirit_etc]

"The standard shouldn’t be to prove it was over 50% responsible for the disease. The standard should be that it is more likely than not that it contributed."

Those two sentences makes no sense to me. Isn't "more likely than not, 51% or more?" It should be "as least likely as not" meaning 50/50 and the win goes to the claimant. jmo

pr

I think if you had to prove that asbestos was over 50% responsible for an individual's cancer, no smokers would ever be granted SC for cancer. I think you should have to show that there was a 50% or greater likelihood that the asbestos was a contributing factor (even if it didn't contribute 50% alone). For instance, my husband's pulmonologist documented in my husband's medical record . Exposure Cigs & Asbestos ---> 80 x’s Risk

And he explained it to my husband and gave him a handwritten note that said:

Former Smoker Best is 1.4 Times

Smoker 10

Asbestos 8

Together --- 80 ß--- Now

So wow! If you had a 10 times risk of getting cancer from smoking, and an 8 times risk of developing cancer from asbestos exposure - but BOTH of them combined jumped your risk to an 80 times risk -- then the combination of them together significantly increased your risk of cancer. BUT if they get into breaking it down to which factor caused how much of the risk then - then they can say that tobacco caused a greater risk (if taken alone), than asbestos exposure did (if taken alone) - and therefore it is less likely than not that asbestos caused the cancer.

But it would seem like anything that increased your risk from 10 times risk to an 80 times risk, is somewhat significant. But if they take something that works synergetically, and try to separate out the effects, the remove the effect of the synergy, and it looks like one thing had more effect than the other.