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)?

[free_spirit_etc]

Additionally, the veteran stated that prior to his death that Dr. XXX, of the XXX Air Force Clinic, told him that his cancer was probably present during his service in the Air Force. A full review of the claim file shows no statements from Dr. XXXX, which suggests that the veteran’s cancer was present during his active period of service. The veteran’s statement was considered, but because it was a lay statement from a person with no specific expertise in the field of oncology, it has no probative value.

My husband was not offering a lay medical opinion. My husband was reporting what the doctor had told him. Additionally, my husband submitted a copy of the handwritten note Dr. XXX had given him during the conversation. Though the handwritten note did not come right out and state my husband’s cancer started while he was in service, it provided information to substantiate that.

In November 2001, my husband reported to the VA that he had initially been informed that his cancer was small cell lung cancer, which had a rapid doubling time. He further reported that during his annual follow-up he discovered the lab report said that he had adenocarcinoma, rather than small cell lung cancer. He stated his doctor explained the doubling time of his cancer to him (approximately 6 months) and explained that for the cancer to be the size it was when it was discovered and removed would have meant the cancer would have been in place for 12 to 15 years.

To substantiate what my husband stated the doctor had told him, my husband submitted a copy of the handwritten note the doctor had written during the conversation. On this note, Dr. XXX had written:

Asbestos

Small Cell

21 day = DT

30 DT = 1 cm = 2 years

+ 10 DT till Death

Squam Cell Cancer

DT = 3 mon.

*** Adeno CA 3.1 cm

DT = 6 mon

15 yrs till 1 cm.

1.25

1.65

2.05

2.65

3.25 ß 35

Former Smoker Best is 1.4 Times

Smoker 10

Asbestos 8

Together --- 80 ß--- Now

Dr. XXX also noted in the treatment record on October 3, 2001 “Also likely Asbestos Exposure as Electrician 1969 – 1982.” “Chart & Consult & Pt in Error & pt in Non-Small Cell CA & Not Small Cell. Important differences explained to pt. e.g. Poss Adeno CA unk 1 °

I believe the RO was in error to call my husband’s statement a lay statement from a person with no specific expertise in the field of oncology that has no probative value. My husband was not offering his own opinion. He was merely reporting what his doctor had told him. He additionally substantiated this with the handwritten note from the doctor which noted the relative doubling times and risk from asbestos exposure and smoking.

In July 2006, we submitted a wealth of evidence to help establish that Dr. XXX’s opinion that my husband’s cancer started in service (based on the doubling times and cancer growth patterns) was based on sound medical reasoning.

§3.159 does not limit competent medical evidence to only what is written in the treatment record, or only formalized medical opinions written to the VA in support of a claim. I believe Dr. XXX’s handwritten note constitutes competent medical evidence, as it was written by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.

We further supported this handwritten note with information from medical treatises.

The recently submitted Independent Medical Opinions further substantiate that the information Dr.XXX gave my husband about adenocarcinoma doubling times, growth rates, and number of doublings required to reach the size my husband’s tumor was when it was diagnosed less than 2 year post-retirement.

The recently submitted medical opinions substantiate what my husband reported Dr. XXX had told him – That adenocarcinoma has a standard doubling time of 6 months, that it takes a tumor doubling about 35 times to reach the size my husband’s tumor was when it was diagnosed, and that it is more likely than not my husband’s cancer started while he was still in the service.

[free_spirit_etc]

Okay... I know this is getting long - but I am addressing the SSOC bit by bit.

This is the first time I noticed they called my husband's statement a " lay statement from a person with no specific expertise in the field of oncology" and stated it has no probative value.

[free_spirit_etc]

"The veteran also provided statements from Dr. XX, but these only speak to the mean doubling time of adenocarcinoma of the lungs being 180 days. Dr. X also does not provide a statement to the effect that the veteran’s cancer was present during his active service."

Dr. XX’s statement, while not a fully articulated opinion, was still evidence which substantiated the fact that my husband’s cancer was a slow growing type of cancer.

This evidence has been further substantiated with the recently submitted medical opinions.

Edited September 30, 2013 by free_spirit_etc

[free_spirit_etc]

"In absence of competent medical evidence that shows that the veteran’s adenocarcinoma of the lungs was at least as likely as not present during his service in the Air Force, the claim for service connection for adenocarcinoma of the lungs remains denied."

The recently submitted medical opinions further substantiate the evidence we have already submitted that because of the type of cancer my husband had, and the known information about the cancer, it is more likely than not that his cancer was present during his service in the Air Force.

[free_spirit_etc]

"We are unable to resolve reasonable doubt in favor of the claimant in this particular instance, because the evidence in favor of granting the claim is less than the evidence in favor of denying the claim."

With the recent submission of the two medical opinions, the evidence in favor of granting the claim far exceeds the evidence in favor of denying the claim. Both of the recently submitted medical opinions specifically state that it is more likely than not my husband’s cancer was present while he was still serving in the Air Force. These opinions are fully articulated and based on sound medical reasoning. These opinions substantiate the less formalized opinions, and treatise evidence we had already submitted.

There is no medical evidence in the file that conflicts with medical opinions I have submitted. There is no medical opinion that states my husband’s cancer did not start while he was in the service. The October 2007 VA examiner opinion states the signs and symptoms listed in my husband’s SMRs are less likely than not early manifestations of my husband’s lung cancer. The examiner did not offer an opinion in regard to whether my husband’s cancer started while he was still on active duty.

[free_spirit_etc]

Still talking to myself :)

"Additionally, we are unable to grant service connection for this condition as it has not been found to be associated with the veteran’s exposure to asbestos, but rather has been found to be due to his use of tobacco."

A medical opinion based on an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458 (1993). There is no medical evidence in the file that indicates asbestos exposure cannot be associated with my husband’s cancer, other than the 2002 VA examiner’s opinion that was made on the presumption that my husband was not exposed to asbestos. The fact that the examiner also stated that my husband had no shortness of breath (when the pulmonary function tests clearly indicated he did), stated that my husband did not have any unique medical conditions that are associated with asbestos (while failing to mention my husband’s Interstitial Lung Disease), and stated that my husband had no apparent residuals from his lung cancer (though my husband had an entire lobe of his lung removed) should further call into question the credibility of his opinion.

Dr. XXX, provided my husband with the handwritten note on October 3, 2001 which states:

Former Smoker Best is 1.4 Times

Smoker 10

Asbestos 8

Together --- 80 ß--- Now

Dr. XX further substantiated this two years later when he wrote in the Chronolical Record of Medical Care 11/5/2003 - (In Medical Records from xxxx 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

Medical Treatise evidence supports this opinion is based on sound medical principles. The synergetic effect of the combination of smoking and asbestos exposure is well-researched and well-documented.

There is no credible medical evidence in the file that conflicts with this.