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]

Since I now have my IMOs submitted, which address the issue of when the cancer started, I think my best bet is to highlight the important points from the IMOs, briefly mention other evidence in the record that supports the opinions, mention that nothing in the record conflicts with the IMOs (even the lack of a tumor showing up in the 1996 x-ray, and even the VA examiner's opinions.) As far as the asbestos exposure issue is concerned, it would probably be best to cover new evidence, and reiterate existing evidence of exposure, point out the error of the VA relying on the VA examiner's opinion, point out my husband's treatment record shows the doctor thought he had an 80 x's risk.

I was thinking there was some decision that talked about how notations in the treatment record are generally considered credible.

[Berta]

If you have submitted 2 additional independent medical opinions, since the SSOC was issued, that fully conform to the IMO criteria in our IMO forum,

and if these opinions support your claim with a full medical rationale for SC death (which of course would support the accrued benefits claim for the same disability) than you should succeed.

I don't see the two new opinions here anywhere at hadit.Have you covered the personal stuff and attached them somewhere?

Have the IMO doctors provided their CV?

The VA will not revisited the opinion from Dr. ...,that they disregarded as probative, in the SSOC unless it can corroborate the 2 new opinions in some way. (and it might)

I have read over the SSOC carefully and was surprised,reading this post, that you now have more IMOs.

That is the only way I foresee VA awarding this claim....with new, recent, and very strong IMOs, that fully conform to the IMO criteria here at hadit and completely overcome the medical rationale in the SSOC that VA used, to deny the claim, IMOs from doctors with expertise in the field of oncology.,whose opinions can outweigh the VA C & P doctor's exam results.

I have no comment on the Drs' note in the file regarding the 80X risk re asbestos, except that I certainly feel the notation is credible.to the VA.

Much of my entire DMII death claim arose from a very brief notation in my husband's med rec.

A notation that was crossed out but I could read it.And I gave a lay statement as to why the doctor noted this (and also why someone else crossed it out) It took me many long months to locate this same Neuro doc, as he had left VA for private practice. I finally found him and we conversed by email and he asked me for some of Rod's VA med recs from the time he treated him at Syracuse VAMC, which he recalled. Then he provided me with a brief final email note.

Long story. His email co oborated my 2 IMOs from Dr. Bash.The BVA gave it as much weight as anything other evidence I had. Dr. Bash had called him and he agreed to put the email reply on his letterhead so VA would know who he was and where he was.

Actually I do have a comment on the 2001 'note'.from Dr. XXX And I hate to be negative here,

but that note,in my opinion, was exactly what VA needed to deny the asbestos claim.

"Since I now have my IMOs submitted, which address the issue of when the cancer started, I think my best bet is to highlight the important points from the IMOs, briefly mention other evidence in the record that supports the opinions, mention that nothing in the record conflicts with the IMOs ) etc.

If the IMOs help your claims and fulfill the IMO criteria here at hadit, and have already been submitted to VA, there should be no need at this point to highlight or mention to VA anything at all in them.

[free_spirit_etc]

Thanks Berta,

I will read over what you wrote. The IMOs and CVs of the doctors that wrote them are attached in Posts 14 and 15.

I was actually pretty confident about my claim until I went to the Hearing. Then when the VSO started dismissing all my evidence - I let that get me all rattled and doubting everything again.

[free_spirit_etc]

"Actually I do have a comment on the 2001 'note'.from Dr. XXX And I hate to be negative here,but that note,in my opinion, was exactly what VA needed to deny the asbestos claim."

I am not clear what you mean here. You mean the part about smoker 10, absestos 8, together 80?

Edited September 30, 2013 by free_spirit_etc

[free_spirit_etc]

I focused building the when it started part of the claim, more than the asbestos part of the claim. I think it would be easier to substantiate and harder to disagree with. And there is no medical evidence in the file that says it did not start in service. In fact, the Radiation Oncologist (who actually did bench research on cell growth) said there is no way any credible doctor could say that my husband's cancer did not start in service. He said that isn't even scientifically plausible. On his second phone call to me he said "I can't even believe they are making a widow of a veteran fight for this." He told me any doctor should be able to tell from looking at the records that my husband's cancer started long before he retired - and he couldn't believe they had not granted the claim from the start.

I do think the VA knows this -- and that is why they have danced around and side-stepped the topic. My husband's initial claim was his doctor told him it had started 12 to 15 years before it was diagnosed. He added the asbestos exposure as a secondary. The VA quickly changed the claim from "Lung cancer, to include due to asbestos exposure" to lung cancer due to asbestos exposure. They never addressed when it started. My husband wrote to the VA and told them they still hadn't adjudicated the claim on the bases of when it started. We also wrote in 2006 and told them they were limiting the scope of the claim. Yet - even when they said they got an opinion addressing the issue of when it started, all the doctor did was discussed how the treatment in the SMRS wasn't related to the cancer.

As far as the asbestos issue - There is so much controversy about the issue - so I think there could be IMOs either way that could be backed by studies. Most studies do show that the chances of getting cancer from asbestos and smoking combined are MUCH greater than the chances of getting cancer from one or the other alone. But there are still a lot of doctors who say that if you smoked, the smoking was a bigger contributor than the asbestos, and therefore the asbestos didn't cause it. I think this could come down a lot to the personal feelings of the judge. I have seen a lot of claims granted with what seemed to be pretty week medical opinions. And I have seen claims that had what seemed to be pretty strong IMOS denied.

[Berta]

The opinions seem to me to be Very good Free spirit!

I regret I missed them.

I just meant that VA will look for a smoking history to try to deny asbestos claims.

Actually I think asbestos related lung disease can be diagnosed separately from smoking affects to the lung....dont know where I got that idea....,maybe from a SVR show .

I have seen many asbestos claims denied because the veteran smoked.

The opinions seem to me to be Very good Free spirit!

I regret I missed them.

I just meant that VA will look for a smoking history to try to deny asbestos claims.

Actually I think asbestos related lung disease can be diagnosed separately from smoking affects to the lung....dont know where I got that idea....,maybe from a SVR show .

I have seen many asbestos claims denied because the veteran smoked.

The opinions seem to me to be Very good Free spirit!

I regret I missed them.

I just meant that VA will look for a smoking history to try to deny asbestos claims.

Actually I think asbestos related lung disease can be diagnosed separately from smoking affects to the lung....dont know where I got that idea....,maybe from a SVR show .

I have seen many asbestos claims denied because the veteran smoked.

The opinions seem to me to be Very good Free spirit!

I regret I missed them.

I just meant that VA will look for a smoking history to try to deny asbestos claims.

Actually I think asbestos related lung disease can be diagnosed separately from smoking affects to the lung....dont know where I got that idea....,maybe from a SVR show .

I have seen many asbestos claims denied because the veteran smoked.