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]

Thanks harleyman. I have some of that stuff from NIOSH and other places. The hardest part of searching is getting past all of the mesothelioma lawyer websites. Granted, they have the info -- but they never cite their sources, so the info is pretty useless (as far as using it to substantiate anything). I just found a book

CURRENT Occupational & Environmental Medicine: Fourth Edition ISBN-13: 9780071443135

"In addition, the variety of occupations associated with asbestos

exposure leads to problems with overlooked exposures.

Exposure occurs in the milling, mining, and transportation

of raw asbestos and in the manufacture of asbestos cement

pipe, friction materials, textiles, and roofing materials.

Construction workers, plumbers, welders, and electricians

are all exposed, and shipyard tradesmen can be “innocent

bystanders” when they are exposed to airborne asbestos

fibers."

But I have seen BVA cases where people have turned in something from an airplane manufacturer to show that the plane had asbestos. But that might just be for cases where the claimant is just claiming one thing that exposed them to asbestos. But with my husband, it was a long-term (13 year) period of different types of exposure.

Probably the strongest evidence is the buddy statements where the guys stated that in the mid-80's they found out they had been working with asbestos and started getting hazmat training and chest x-rays. But none of those were "sworn" or whatever -- including the statement that they were swearing that under oath. We didn't read about doing that until after my husband got the statements, and he didn't want to go back and ask the guys to re-do them. But the guys did include their phone numbers and or their addresses. And the SSOC said the buddy statements confirmed asbestos exposure. So I would hope if the BVA would consider them to be "not credible" they would at least let me know and give me the opportunity to get "sworn" statements. I guess the other thing I could do is to try to get ahold of the guys and have them sign a sworn statement that the statement they wrote was true.

I should hear back on some of my FOIA requests for when the bases started asbestos safety programs, and whether electricians were included in the programs.

The only other thing is that after showing my husband was exposed to asbestos, I would still need to show that the exposure was linked to his cancer. Though he has a diagnosis of interstitial pulmonary fibrosis, he did not have a diagnosis of asbestosis. With a diagnosis of asbestosis, it would be pretty easy to prove. But it seems like a lot of the VA examiners will opine that if the veteran didn't have asbestosis, asbestos didn't cause their cancer. Sometimes the judges buy into that argument, and sometimes they don't. Most studies show an increased risk of cancer, regardless of whether the person has asbestosis or not.

And I will still need to decide pretty quickly whether I want to pay for an IMO on the issue now, or wait and see if it is granted on the basis that the cancer started in service (which would make the asbestos exposure issue a moot point).

If the judge doesn't grant it on the started in service basis, I don't think he can deny it at this point on the asbestos issue. I think he would have to grant it (probably not at this point) or remand it, or get another opinion from a doctor who takes the asbestos exposure into consideration. I think at this point, the evidence in favor of asbestos exposure is greater than the evidence against it. We don't have a medical opinion yet that comes right out and says it was caused, at least in part, by asbestos exposure. But the surgeon, pulmonologist, and oncologist all noted asbestos exposure as part of the relevant medical history at the time of diagnosis / treatment. From what I read, this can be very relevant, as they associated asbestos exposure with his cancer from the beginning. And the pulmonologist noted my husband had an 80 x's risk from exposure to asbestos and cigarettes. These were part of his treatment records and not written just to substantiate a claim (i.e. making them more "credible"?). At least from the cases I read they hold it against the person if the medical records say nothing about asbestos exposure until the veteran files the claim. In my husband's case, the surgeon noted asbestos exposure when it was diagnosed in 2000. And my husband didn't even file a claim for it until 2001 when his pulmonologist told him it probably started in service. So it should be pretty apparent (if pointed out) that he didn't just make asbestos exposure up after the fact because he had filed a claim.

The only evidence that asbestos exposure did not contribute to my husband's cancer was the 2002 VA examiner who stated my husband was not exposed to asbestos. We wrote a letter asking the VA to consider the exam inadequate because of all the factual inaccuracies in the report. So if the judge agrees it is more likely than not my husband was exposed to asbestos - he can't really rely on that opinion to deny the claim. In fact, that was one of my areas of appeal - that the RO conceded that my husband was exposed to asbestos, but still relied on a medical opinion that didn't take his asbestos exposure into consideration to deny the claim.

[free_spirit_etc]

No. I haven't. I think my husband talked to one when he was alive. I think he even sent them some medical records. But isn't there a statute of limitations on that? My husband died in 2007.

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

pr

[Philip Rogers]

There may or may not be, depending on when you found out. It's worth checking on.

pr

[shipswriter]

Asbestosis is such a fascinating subject because there are so many variables, I mean it can take 20-30 years to manifest and very slowly progress until the crescendo of the illness is reached.

In my case, a little bit of fibrosis in my lung found on CT scan back in 2008. I suffered a lot from sinus problems while in-service for the better part of 10 years, concomittant with what I feel must be presumed exposure. For instance, I was active duty on-staff in probably one of the oldest buildings the Navy owned at that time (early 80s in Detroit); and of course we all knew there was asbestos everywhere in that place, and I started with weird illnesses while there like my first experience with sinus and throat problems, and on chest x-ray they said I had many nodes in my chest, not to mention a baseball size nodule of some kind showing out of the side of my neck?! Also I served on a Navy ship that literally saw action in WW-2, not to mention other salvage duties the region of the Bikini attol; God knows what was left circulating in the evaps and other crevices for sailors to contend with who served on that ship which was brought to life at least twice from the boneyard. While at least 35-40 years probably enough time to after effects to wear off in the ship, but who knows, I was infertile suddenly and remained so.

My point is that when they list the rate you were in the Navy, there should be an asterik next to the 'minimal' likelihood Navy rates, whatever, they should take into account a servicemembers actual duty station and were those buildings and/or ships likely to be 'infected' with asbestos particles or other toxins.

I still don't know why I have such significant respiratory issues but I do know these respiratory issues became much worse as I reached the 30 year mark of what I presume to be my first asbestos exposure in Detroit and that is when my sinus/throat problems first erupted.

[free_spirit_etc]

That's interesting shipswriter. I have noticed that most of my husband's SMRs are sinus, bronchitis, and upper respiratory problems -- especially in the 70's and 80's.

I haven't found a lot of info linking sinus and URIs to asbestos in particular -- but it would seem like any kind of dusty stuff being breathed in would cause those problems.

I have noticed a few older BVA cases where the Board noted the the wife / widow said the veteran had to clear his throat a lot, or use throat drops for years. So it must be relevant.

[free_spirit_etc]

I got my first response from my FOIA requests. My husband was an electrician at Shaw AFB from 1970 - 1975. They responded that they did not have an asbestos management plan in place from 1970 - 1975, that their initial plan was 1989 - 1990, that they do not have a copy of the original plan, and that their medical surveillance plan was not implemented until 1996.

They didn't respond as to whether electricians were included in the medical surveillance.

This letter doesn't actually "prove" asbestos exposure - but at least it definitely refutes the VA examiner's opinion that my husband was not exposed to asbestos because he was not part of any medical surveillance programs.

Edited September 25, 2013 by free_spirit_etc