Accrued Benefits - Reopening - Missing Service Records

[free_spirit_etc]

As my husband's discharge physical is not in his C-file, and there is not any indication it was ever in the C-file - if I can ever obtain a copy, does that mean I can use it as new and material evidence to reopen any and all claims that were denied because the SMRs didn't show X (as long as the claimed condition / symptom was mentioned on discharge physical)?

[Philip Rogers]

I forgot to mention that sometimes there was no discharge physical given, although I believe, it was rare not to give one.

pr

[free_spirit_etc]

I forgot to mention that sometimes there was no discharge physical given, although I believe, it was rare not to give one.

pr

The Chronological Record of Care has a notation on June 18, 1998 that my husband had a physical and Form 2697 completed - extensive.

[free_spirit_etc]

"While BVA decisions have taught me plenty over the years, they are always specific to the claimant and not to any other vet or widow.

Also I learned from my own BVA decision that the decision never mentioned much of the vast amount of evidence I had. The BVA used the IMOs from Dr. Bash as the prime rationale for their award and I was disappointed that other evidence I had,, which might have helped someone with a similar claim, did not appear much in the BVA decision at all.So we read these BVA decisions without benefit of the full story, mainly when BVA awards the claim. They keep the award decision short and sweet."

This is so VERY True!

[free_spirit_etc]

This was the SSOC

SSOC lung cancer.pdf

[free_spirit_etc]

This was my initial appeal - attached to the Form 9

I am appealing the decision denying accrued benefits and DIC on the record of xxx

I take exception to and preserve for appeal ALL errors the VARO may have made or the Board hereafter could make in deciding this appeal. This includes all legal errors, all factual errors, failure to follow M21-1,all due process errors and any failures to discharge the duty to assist as violation of basic VA laws and regulations within 38 USCS and 38 CFR.

Some of the specific errors of facts / law on the Supplemental Statement of Case with which I disagree include, but are not limited to:

Though the VA acknowledged our assertion that my husband’s cancer had its onset in service, and contend they asked the VA examiner to determine if my husband’s cancer had its initial onset in service, the October 2007 VA examiner’s report did not address this issue.

Though the examiner opined that it was more likely than not the respiratory problems that were treated in service were not early manifestations of lung cancer, the examiner did not provide any opinion regarding the probable onset time-frame of the cancer.

The examiner also did not indicate that he reviewed any of my husband’s post service medical records, though my husband’s lung cancer was diagnosed 2 years post service. He also did not provide any rationale for his decision, based on sound medical principles. Nor did he, or the VA, provide any supplemental information to support the medical opinion.

VA law on post service diagnosis of illness does not indicate that an illness has to be diagnosed or treated in service in order to be service connected.

The file contains evidence that it was more likely than not that my husband’s cancer had its onset before his October 1998 retirement from service. This includes a 10/3/2001 handwritten note from Dr. xxxx, indicating the relative doubling times of my husband’s type of lung cancer, and how many doublings it would take to reach the size my husband’s tumor was at diagnosis, (submitted with initial claim), a notation in the Written Notes in Chronological Record of Medical Care 10/3/2001, in which Dr. xxx notes that the cancer was non-small cell cancer (and not small cell as had previously been reported in error) and that the important differences had been explained to the patient; a statement from treating oncologist, Dr. xxxxx, indicating the mean doubling time of pulmonary adenocarcinoma is 180 days; and a wealth of medical journal article excerpts, and medical treatise information from reputable sources to support the contention that the statements from these physicians are based in sound medical principles.

In determining whether it was more likely than not that the my husband’s exposure to asbestos during the 13 years he worked as an electrician in the Air Force contributed to the eventual development of my husband’s cancer, the VA relied on the March 19, 2002 examiner’s report.

Our disagreement with this report was set forth in our letter requesting the VA consider the examination to be inadequate. Among other things, the examiner determined that my husband’s cancer was caused by smoking, without providing any rationale as to whether it was more likely than not that asbestos exposure could also have been a contributing factor - if my husband had been exposed to asbestos. Due to the combined affect of smoking and asbestos exposure being well documented throughout medical literature, we would expect the examiner to offer some sound medical reasoning to justify totally ruling out the effect of asbestos exposure to make a determination that my husband’s cancer was caused by smoking alone.

The examiner, in this case, opined that asbestos exposure did not contribute to the development of my husband’s lung cancer, as he opined there was no evidence that my husband was routinely exposed to asbestos. The examiner gave no rationale for disregarding my husband’s own statements of work he did that exposed him to asbestos, and the medical records that noted probable asbestos exposure, including:

Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. xxxx 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 – xxxx, MD – Oncologist

(In Medical Records from xxxx 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 9/29/2000 also notes under Respiratory system:

• Asbestos exposure
• Lung CA
• Cough

The examiner relied on the fact that there was no evidence that my husband was part of any medical surveillance or occupational screening programs to opine that there was no evidence my husband was routinely exposed to asbestos. However, evidence of record shows asbestos safety programs were not even in existence in the Air Force until after the time my husband worked as an electrician. The lack of medical surveillance would point to the fact that my husband was exposed to asbestos at a time that no safety measures were in place more than that he was not exposed to asbestos.

The examiner did not indicate, based on sound medical principles, what type of exposure would be required to be considered “routine,” or whether exposure to asbestos had to be routine to lead to the development of lung cancer.

The examiner noted that my husband’s medical records did not indicate that he had any unique medical conditions that are associated with asbestos. However, he failed to indicate, based on sound medical principles, why he disregarded my husband’s Interstitial Lung Disease that was indicated in x-rays taken at Georgetown Medical Center and St. Louis University Hospital in 2000, and confirmed with a diagnosis in a pathology report at St. Louis University Hospital in September 2000.

The file contains evidence that asbestos exposure most likely played some role in the development of my husband’s lungs cancer, which includes, but is not limited to:

Written Notes in Chronological Record of Medical Care 11/5/2003 - Dr.xxxx - (In Medical Records fromxxxx Air Force Base) states:

Hx of Lung Cancer. S/P resection at SLU September 00

3 cm & LLL-ectomy. Adeno CA. Smoker & Asbestos Exposure.

Impr. – 1. Poss Adeno CA Stump Recurr

2. 1^st CA 2000

3. Exposure Cigs & Asbestos > 80 x’s Risk

Dr. xxx notation in the medical record of the increased risk, supports the handwritten note he gave to my husband on 10/3/2001, in which he indicated the relative risk for cancer from smoking alone, asbestos exposure alone, and a combination of the two. This relative risk is also supported by medical information from reputable sources within the claim file, showing this information is based on sound medical principles.

The Supplemental Statement of Case notes that the chest x-ray taken in 1996, slightly over two years prior to my husband’s retirement from the Air Force, did not show evidence of lung cancer. However, it did not offer any sound medical reasoning to indicate that my husband’s lung cancer should have been detectable by x-ray at this time in order to be service connected.

There is no disagreement that my husband had a 3.1 cm tumor removed approximately 2 years after retiring from a 28-year career in the Air Force. Evidence of record indicates that in order to be detectable by x-ray, a tumor has already been in place for quite some time. There is also ample evidence of record that pulmonary adenocarcinoma is considered a slow growing cancer.

Additionally, there is no indication in the Supplemental Statement of Case that my husband’s discharge physical has disappeared from his file. There are notations in my husband’s Chronological Record of Medical Care that a discharge physical was performed, and some of my husband’s earlier claims refer to his discharge physical. However, we have attempted to obtain a copy of this physical from the VA repeatedly, and have been informed that it is no longer part of his record. As my husband is claiming for service connection for a disease diagnosed post-service, I am concerned that his discharge physical has disappeared from his file.

A significant amount of evidence we submitted is not listed in the evidence section, nor discussed in the reasons and bases for denial.

In regard to entitlement for accrued benefits, the Supplemental Statement of Case indicates my husband had an active claim for adenocarcinoma pending at his death, it does not indicate that any other claims, reasonably raised by the evidence of record, would also be pending. These claims include, but are not limited to, other respiratory illnesses and increased ratings for conditions for which my husband was already service connected at the time of his death.

These conditions would include, but are not limited to, chronic bronchitis, chronic sinusitis, cervical strain, and increased rating for arthritis of the joints.

I thank the VA and the BVA for considering this claim and appeals. I respectfully request additional time to provide additional factual / legal arguments and additional evidence in support of my claim.

Respectfully submitted,

[free_spirit_etc]

The VA examiner's opinion when he was supposedly addressing whether my husband's cancer started in service. (Notice how he just scribbled a quick denial kind of note - like my husband's death could be dismissed that easily... )

VA examiner opinion_ onset.pdf