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

[free_spirit_etc]

Berta,

Yes. I am puzzled by some of the reports. And what is odd is there wasn't much mention of the Interstitial Fibrosis after the diagnosis. But most of the notes we have are treatment for lung cancer. I even asked the doctor while we were working on the claim why no one was talking about his ILD. The doctor said because the cancer was more important. The pulmonologist documented about it a bit - but just referred to his restrictive lung disease.

But I certainly don't think finding someone who just makes a blanket statement that he had ILD, and that proves he was exposed to asbestos is the route to go, unless they have a lot of strong evidence to support that.

But I also think this enters the realm of lack of evidence does not constitute negative evidence. Of course, proving asbestosis would be very useful in proving that it is more likely than not that asbestos exposure played some role in the development of the lung cancer. But not proving you had asbestosis does not necessarily prove that your lung cancer is not related to asbestos exposure. In fact, I was reading the other day an article that discussed that 7 out of 9 studies concluded that asbestosis was not required for asbestos related lung cancer. Studies have shown that smokers who are exposed to asbestos who do not have radiographic lung changes still get cancer at a higher rate than smokers who are not exposed to asbestos. So, though it can be a stronger case if you can prove asbestosis, I don't think it necessarily defeats a case to be unable to prove that.

http://www.ncbi.nlm.nih.gov/pubmed/20672325

"

CONCLUSIONS:

Workers from an Ontario asbestos-cement factory who did not have radiographic asbestosis at 20 or 25 years from first exposure to asbestos continued to have an increased risk of death from lung cancer during an additional 12 years of follow-up."

http://thorax.bmj.com/content/60/5/433.full.pdf

The question of whether lung cancer can be attributed to

asbestos exposure in the absence of asbestosis remains

controversial. Nine key epidemiological papers are

reviewed in a point/counterpoint format, giving the main

strengths and limitations of the evidence presented. Of the

nine papers, two concluded that asbestosis was necessary

and seven that it was not.

[free_spirit_etc]

And this is also why I kind of backed off on the asbestos exposure argument a bit. Substantiating it will cost $$ for a decent IMO. And if I am granted the claim on the basis that the cancer started in service, what caused the cancer would be a moot point. So I figured that the Board would either:

1. Grant my claim on the basis the cancer started in service.

or

2. Remand the claim on the asbestos issue. As the only medical opinion on record that states asbestos did not cause my husband's cancer made the assumption my husband was not exposed to asbestos I don't think the Board could use that opinion to deny the claim, if the Board concedes he was more likely than not exposed. And the VA examiner didn't even mention the Interstitial Fibrosis, even to rule it out. So - though ILD isn't proof positive of asbestosis - I think it should still be discussed in the opinion. And though it isn't a fully articulated opinion, the fact that the treating physician noted in the treatment record Exposure Cigs & Asbestos ---> 80 x’s Risk - (and this is actually based on sound medical principles -- and not just some made up figure) - I don't think they could deny the claim at this point.

So I would have time to work on getting a medical opinion directly related to the asbestos exposure, if it become necessary to establish my claim.

So I keep going back and forth between - Do I get an opinion and put out more $$$ now? Or do I go with what I have (2 IMOs in support of my claim on the basis my husband's cancer started in service and enough evidence to establish probably asbestos exposure) and hope for a win or a remand? Or do I go for it all the way and get an IMO on the asbestos exposure now too?

I THOUGHT I made that decision before my hearing. But now that I have 90 more days to submit evidence I am rethinking it again.

Another consideration is how likely the judge would be to grant the claim on asbestos exposure if I did have an IMO. If he was likely to grant it when comparing my IMO to the VA IMO (that didn't consider exposure at all) then it might be worth the money. But if the judge would be more likely to seek another opinion, even if I have an IMO, then it might be more effective to let them go first, and see what position they take and how strongly they take that position.

[free_spirit_etc]

I have been in contact with an Associate Professor of Environmental and Occupational Medicine at Robert Wood Johnson Medical School at Rutgers who might be able to assist me. But he said he would be pretty tied up with teaching and research until mid-October. But I do want to talk to him and see what he thinks about it.

[free_spirit_etc]

I have been going by the Electrical System Craftsman (3E071) on my husband's DD214. And he mostly talked about being an Interior Electrician. But he submitted information to the VA that he worked with MB-18, MB-19, EMU-21, EMU-22 diesel and "Dash 8" gas turbine generators for his first 4 1/2 years (In an Air Force Tactical Control Squadron). His Hearing Conservation Data form foor this time period confirms this. It has him listed as 54250 / Electrician - and describes his duties that expose him to noise as "AGE Equip. Mechanic.

He also said that he worked with A/E32C type mobile air conditioners / heaters. He said these all had asbestos heat shields and wiring. He says he was responsible for constructing, maintaining, and using the entire electrical distribution system when deployed - and that required heavy soldering and wearing asbestos gloves. And he said that when in garrison he was responsible for the electrical systems in approximately 6 buildings (all built in or before 1960). This involved climbing over and under asbestos coated pipes and attic insulation, and drilling through wallboard, cement board, and ceilings to include drop ceiling tiles. (This was at Shaw AFB - early 1970's)

He also said at Baudette Radar Squadron - in mid 70's - There were no exterior electricians - and so he did both indoor and high voltage work. He said all building s were pre-60's and asbestos insulation was used widely. He said he also had to work on all the electrical equipment in the dining facility that was old and had asbestos heat shields and wiring. He also had to maintain the central heating plant with huge boilers that were insulated with asbestos that was broken, crumbling, and deteriorated.

I need to locate the initial paper he turned in (It is somewhere in a big pile of papers right now). But I know he also talked about working in the Air Field Lighting Vault during a Typhoon (operating the lighting by hand).

I have tried to look up info on the generators he mentioned -- but have not come up with anything yet. It doesn't seem like it would be this hard to try to show that someone who worked as an electrician in the 1970's and early 80's was not only exposed to asbestos, but consistently exposed to asbestos.

[Philip Rogers]

free_spirit - have you contacted any of the private law firms for an asbestos claim? If not, maybe you should. jmo

pr

[harleyman]

I have tried to look up info on the generators he mentioned -- but have not come up with anything yet. It doesn't seem like it would be this hard to try to show that someone who worked as an electrician in the 1970's and early 80's was not only exposed to asbestos, but consistently exposed to asbestos.

I would try to look for information on hazzards of work coming from the other direction. Check with civilian occupational hazards of members in the construction trade to include plasterers, general contractors, electritions, sheet rock hangers, masonry, taping, tecturing, anything to do with constructions hazards. He falls into the category simply because all homes, buildings and facilities need wiring and electicity so it is a given he was exposed to those hazzards. You might find more information from the general public avenue than through the military MOS route. Just a suggestion.