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]

Thisis rally great evidence in support of his exposure. Good work and research on your part. - Harleyman

[free_spirit_etc]

Thanks harleyman! I still didn't get any confirmation that electricians were included in the medical surveillance, once the programs started - but I only asked for evidence if they were included on the INITIAL asbestos management program -- and the medical surveillance program was not started until later at that base.

It is kind of frustrating that they started protecting the workers and doing medical surveillance in the mid to late 80s and beyond - and that a doctor who has a specialty in occupational medicine would opine that someone who worked in the field in the 1970's would not have been exposed to asbestos because they were not a part of a screening program that wasn't in existence at the time.

But at least this evidence is enough to somewhat poke holes in the VA examiner's opinion.

[free_spirit_etc]

This is the examiner's opinion used to deny the earlier claim - and later my claim for DIC.

VA asbestos opinion_2002_redact.pdf

[free_spirit_etc]

We submitted this letter to the VA during my husband's lifetime, challenging the adequacy of the VA examiner's opinion.

___________________________________________________________________________________________________

C&P Service Clinician’s Guide § 4.2 “1.11 If an examination report does not contain sufficient details to adequately support the diagnoses (unless the diagnosis is already well established) or sufficient information about the current findings and effects on functioning, the RVSR will return the report as inadequate for rating purposes. (38 CFR 4.2)

I consider the examination I received in March 2002 regarding my lung cancer to be totally inadequate for the following reasons and request that it not be used as a basis in determining my case.

1. The examiner did not examine me.
Though the report is labeled as an examination, the examiner never met with me. The examiner indicated in his report that he was requested to offer an opinion after review of the medical records whether there is a relationship between my currently detected lung cancer and exposure to asbestos in the service, or to give an opinion as to any other etiology.

There is nothing in the examiner’s report which indicates he even talked to me, let alone examined me. The VA examiner issued his report / opinion after a review of some of my records. However, issuing such a report as a “Respiratory Diseases, Miscellaneous Exam” is misleading, and could be mistaken for an actual examination under the VA Clinical Guidelines, which it is not.

2. The fact the examiner stated I had no shortness of breath, and did not have any apparent residuals of the lung cancer I was treated for without even examining me raises a legitimate question as to the credibility of his report.

My pulmonary function tests done at the same VA facility on March 19, 2002 (the same day the VA examiner indicated he reviewed my medical records – and five days before he signed the report) noted that I had dyspnea on hills and stairs, frequent wheezing, and decreased FVC (73% predicted) and decreased FEV1 (69% predicted)

According to § 4.97 Schedule of ratings—respiratory system.Restrictive Lung Disease - 6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).
FEV-1 of 56- to 70-percent predicted should be rated at 30%

The examiner did not even mention my pulmonary function tests done that day, yet he declared I did not have any apparent residuals of the lung cancer. Though it is part of my medical record, it is not clear whether the examiner realized that I had a left lung lower lobectomy before he issued his opinion on my residuals, as he failed to mention it in the report.

My DLCO was 51% on my pulmonary tests at xxx Air Force Base in 2001. These were also part of my medical record. According to § 4.97 Schedule of ratings—respiratory system.Restrictive Lung Disease - 6844 Post-surgical residual (lobectomy, pneumonectomy, etc.).DLCO (SB) of 40- to 55-percent
predicted should be rated at 60%.

The C&P Service Clinician’s Guide 6.1 d) 4. states “If the DLCO test is not included as part of pulmonary function testing, the examiner should determine whether or not it would provide useful information about the severity of pulmonary functioning in a particular case. If it was not done as part of the routine testing, and would not be useful, the examiner should explain why, e.g., by explaining that the DLCO would not be valid in this particular case because of the decreased lung volumes. Unless an explanation for its omission is provided, the DLCO should be done.”

Though my DLCO’s of record were low, no DLCO was done as part of my pulmonary functioning testing. Nor was there any explanation as to why a DLCO was not done prior to his determination that I had no residuals from lung cancer. Again, I question the adequacy of his report.

As I also have resected ribs, an 11 inch long depressed scar spanning from my scapula to under my arm, etc. I question the ethical soundness of a physician making a determination that I had no residuals of lung cancer merely from reviewing some of my medical records, without so much as seeing me, and without articulating sound medical reasons for doing so.

2. There is no indication that the examiner issued a fully informed opinion based on a complete and thorough review of all the relevant information of record. I would think this would be especially important when issuing an opinion from viewing the files, in absence of examining me.

Though the examiner notes that my service medical records were completely reviewed, he doesn’t articulate any specific post-service medical records that were reviewed. The only post-service medical record the examiner references in his report is the September 2000 pathology report, which indicated evidence of emphysematous changes. As my claim involved post-service diagnosis of disease, which is covered under §3.303(d) , it would seem that a complete and thorough review of my post-service medical records would also be necessary in order to issue an valid opinion concerning the disease.

Evidence of a substantial reasonable doubt being raised as to the examiner issuing a fully informed opinion includes:

a.) The examiner noted that my medical records did not indicate I had any unique medical conditions that are associated with asbestos. However, he failed to mention my Interstitial Lung Disease that was indicated in x-rays taken at xxx Medical Center and xxx Hospital in 2000, and confirmed with a diagnosis in a pathology report at xxx Hospital in September 2000. Interstitial Lung Disease is often linked to asbestos exposure, yet the examiner did not mention it, nor provide rationale, based on sound medical principles, for making a determination that my Interstitial Lung Disease was not a medical condition that is associated with asbestos.

b.) The examiner noted there does not appear to be anything in the medical records to support the presumptive diagnosis of exposure of asbestos.

I did not ask to be granted a presumptive diagnosis of exposure to asbestos. I clearly indicated specific work tasks I did, in specific instances, which exposed me to asbestos working as an electrician in the Air Force. Additionally, my post service medical records clearly indicate asbestos exposure.

Both my treating pulmonary physician and oncologist at xxx discussed my occupational history with me, and indicated in their medical records that it was likely I was exposed to asbestos while working as an electrician in the Air Force.

Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. xxx(In Medical Records from xxx Air Force Base) states:

“CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN
Also likely asbestos exposure as electrician 1969 – 1982”

New Patient Note 10/10/2001 – xxx, MD – Oncologist
(In Medical Records from xx Air Force Base) states: “The patient’s past history is somewhat remarkable in that he worked as an electrician in the air force and was exposed to asbestos.”

The Nursing Assessment from xxx Hospital 9/29/2000 also notes under Respiratory system:
· Asbestos exposure
· Lung CA
· Cough

The examiner gave no rationale for disregarding the notations of asbestos exposure in the medical documentation. He did state that the medical records did not indicate any industrial hygiene surveys or show any evidence of being on any unique occupational health surveillance programs. However, he failed to articulate whether these types of programs, in regard to asbestos, were even in effect in the Air Force during the 70’s and early 80’s. As evidence will show that such programs were not in effect at such time – indicating there is a lack of such records, without indicating that the lack is the result of such programs not being in existence at such time, is very misleading, if not uniformed.

Additionally, the examiner stated there was no solid evidence that I was routinely exposed to asbestos. However, he did not articulate whether he was indicating that asbestos exposure would have had to been routine to have played a role in the development of my cancer, the degree of exposure would need to be to be considered routine, and what medical bases support such a decision.

Based on the above mentioned issues, it appears the examiner’s report was either very uninformed or very biased, in that he noted that I had a history of smoking and a pathology report of emphysematous changes, yet he made no notations in the report of the indications of asbestos exposure in my medical records, my diagnosis of Interstitial Lung Disease, or the restrictive patterns in my pulmonary function tests - and gave no medical bases for disregarding these in his opinion.

To make a decision that my lung cancer is secondary to my long term use of cigarettes, while failing to mention any of the evidence of record of asbestos exposure, though noting what evidence was NOT in the record -- occupational health surveillance records which were part of a program initiated AFTER I was no longer an electrician, seems rather flawed.

By not discussing the evidence OF record, the examiner gave no rationale, based on medically sound principles, for the determination that my cancer was secondary to smoking and not related to my in-service asbestos exposure. Nor did it provide a medically sound basis for the determination that I had no apparent residuals from my left lower lobe lobectomy.

As such, the report should be considered inadequate for rating purposes.

[free_spirit_etc]

For my DIC claim, in regard to asbestos exposure – the SSOC stated:

“Additionally, during the veteran’s lifetime, it was his contention that his exposure to asbestos was what caused his adenocarcinoma of the lungs. During the pendency of his claim and appeal several statements were submitted from fellow service members, that confirms the veteran’s exposure to asbestos. However, upon a thorough review of the case, the VA examiner, in his report dated March 19, 2002, states that the veteran’s adenocarcinoma of the lungs is due to the long-term use of cigarettes, and not related to asbestos exposure. The examiner’s rationale was that the veteran had at least a 40-pack year history of smoking, which was the likely cause of the veteran’s cancer.”

It is ironic that they conceded asbestos exposure, but continued to rely on a medical opinion that had presumed my husband was not exposed to asbestos to deny the claim.