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]

One of my IMOs and CV

IMO_onset_ 2_redact.pdf

curriculum vitae-IM_2_redact.pdf

Edited September 28, 2013 by free_spirit_etc

[free_spirit_etc]

My other IMO

IMO_onset_1_redact.pdf

curriculum vitae-IM_1_redact.pdf

[free_spirit_etc]

As far as substantiating my husband's cancer started in the service, I think I built a pretty strong case. I have 2 IMO from 2 oncology specialists who state pretty strongly that it is more likely than not that his cancer started quite some time before he retired. We also submitted quite a bit of treatise evidence during my husband's lifetime regarding the slow growth rate of his type of cancer, explaining doubling time, etc. etc, a letter from his treating oncologist stating the mean doubling rate of my husband's type of cancer is 180 days, and the handwritten note (but not in the treatment record) from my husband's pulmonologist that noted adenocarcinoma has a doubling time of 6 months, it takes 30 doublings to reach 1 cm, and 35 doublings to reach 3 cm.

There really isn't any medical evidence in the file that refutes any of this that I know of. The VA doctor just addressed his symptoms in the SMRs and said those were not related to his cancer. He danced right past the question of when it started. And we backed the doubling time, growth rate information with treatise information from some pretty reputable sources.

I guess the judge could still ask the VA examiner to give another opinion on the issue. But to me, the evidence in favor of the claim greatly outweighs the evidence against the claim -- as the only evidence against the claim is actually lack of evidence; not evidence against it, per se. His cancer wasn't diagnosed in service (lack of evidence - not negative evidence). His chest x-ray 4 years before his cancer was diagnosed did not show any cancer (lack of evidence - not negative evidence). The VA examiner said his symptoms from his respiratory problems in service weren't early manifestations of cancer. (Lack of evidence - not negative evidence).

Due to the strength of the IMOs, the fact that they are backed by sound medical principals, and the fact there is no medical evidence in the record that actually refutes what the doctors said - it wouldn't seem like the judge would need another opinion, unless he was specifically seeking against against the claim.

Here is some of the type of treatsies information we presented.

ALREADY PRESENT DURING ACTIVE SERVICE

Friberg S, Mattson S. On the growth rates of human malignant tumors: implications for medical decision making. Journal of Surgical Oncology. 1997;65:284–297.

The article On the Growth Rates of Human Malignant Tumors: Implications for Medical Decision Making (Journal of Surgical Oncology, 1997;65:284–297,Friberg & Mattson) states:

“Irrespective of their growth rates, most human tumors have been found to start from one single cell, to have a long subclinical period, to grow at constant rates for long periods of time, to start to metastasize often even before the primary is detected, and to have metastases that often grow at approximately the same rate as the primary tumor. The recognition of basic facts in tumor cell kinetics is essential in the evaluation of important present-day strategies in oncology. Among the facts emphasized in this review are: (1) Screening programs. Most tumors are several years old when detectable by present-day diagnostic methods. This makes the term ‘‘early detection’’ questionable. (2) Legal trials. The importance of so-called doctor’s delay is often discussed, but the prognostic value of ‘‘early’’ detection is overestimated. (3) Analyses of clinical trials. Such analysis may be differentiated depending on the growth rates of the type of tumor studied. Furthermore, uncritical analysis of survival data may be misleading if the TVDT is not taken into consideration. (4) Analyses of epidemiological data. If causes of malignant tumors in humans are searched for, the time of exposure must be extended far back in the subject’s history… As this review shows, most human malignant tumors are many years old when clinically detectable.

Mulshine JL.Reducing Lung Cancer Risk*: Early Detection. Chest. 1999;116(suppl_3):493S-496S.

In the article Reducing Lung Cancer Risk* : Early Detection (Chest – The Cardiopulmonary and Critical Care Journal for Pulmonologists, Cardiologists, Cardiothoractic Surgeons, Critical Care Physicians, and Related Specialists - 1999;116;493-496) the author states:

The poor prognosis of lung cancer is related to the progression from a localized primary to a disseminated metastatic disease. With our current diagnostic technology, by the time lung cancer reaches a point at which it is clinically detectable, the disease is already in the late stages of its natural history and is only a couple of doublings away from reaching a lethal tumor burden. Lung cancer tumor burden typically exceeds 10⁹ cells at the time of diagnosis (a 1-cm3 volume). Thus, an important goal for lung cancer management is to develop improved techniques of identifying the premetastatic phases of lung cancer when the disease can be more successfully treated.

http://www.moffitt.org/research--clinical-trials/cancer-control-journal/screening

Screening, Early Detection, and Early Intervention Strategies for Lung Cancer

(Cancer Control: Journal of the Moffitt Cancer Center, Vol 2, No. 6, November/December 1995) reports:

“Radiographically detectable lung cancer is hardly early disease. To be seen on routine chest radiograph, in the favorable circumstance of a peripheral nodule that does not overlie shadows of rib or mediastinal structures, a lesion has to be approximately 1 cm in diameter. Such a mass will typically contain 10 to the 9th tumor cells, representing about 30 doublings under an ideal condition of no cell loss. Such conditions never occur in human tumors; a comparison of actual and potential doubling times suggests that cell loss factors in the range of 80% to 90% are common. [3] At this point, the "early" tumor has undergone most of its life span. This long preclinical history for even the smallest radiographically detectable tumors gives ample opportunity for the mutational appearance and clonal selection of phenotypes capable of invasion, metastasis, and drug resistance.”

DOUBLING TIME – GENERAL

Lillington GA. Management of solitary pulmonary nodules. How to decide when resection is required. Postgrad Med. 1997;101:145–150. doi: 10.3810/pgm.1997.03.177.

The article Management of solitary pulmonary nodules: How to decide when resection is required (POSTGRADUATE MEDICINE, VOL 101 / NO 3 / MARCH 1997, Glen A. Lillington, MD) reports,

“Malignant nodules usually grow at a constant exponential rate, which can be expressed as the tumor's doubling time (i.e., the interval required for it to double in size). An increase of 28% in nodule diameter indicates doubling. In malignant lesions, the doubling time is between 25 and 450 days in most cases, with a median of 120 days.

Reich JM. Improved survival and higher mortality: the conundrum of lung cancer screening. Chest. 2002;122:329–337.

The article Improved Survival and Higher Mortality^*:The Conundrum of Lung Cancer Screening (Chest. 2002;122:329-337. American College of Chest Physicians) reports,

“Thirty doublings, three quarters of the life history of the tumor, are required to achieve a 1-cm diameter tumor, the threshold for radiographic detection. Forty doublings would produce a 10-cm diameter tumor. Twenty-five doublings are required to achieve a 3-mm diameter tumor, the threshold for detection by LDCT scanning. As a convenient rule of thumb, three volume doublings (an eightfold change) are required to double the diameter of a spherical tumor.”

Winer-Muram HT, Jennings SG, Tarver RD, et al. Volumetric growth rate of stage I lung cancer prior to treatment: serial CT scanning. Radiology. 2002;223(3):798–805.

The article Volumetric Growth Rate of Stage I Lung Cancer prior to Treatment: Serial CT Scanning (Radiology 2002;223:798-805 Winer-Muram, et al., from the Department of Radiology, Indiana University School of Medicine, Indianapolis; and the Department of Radiology, Richard L. Roudebush, Veterans Administration Medical Center, Indianapolis, IN) reports:

“Many investigators have estimated the growth rates of various types of lung cancer by using chest radiography. In one series of 67 patients, DT ranged from 30 to 490 days; in another review of 52 patients, DT varied from 1 to 14 months. Radiographically, it has been estimated that a tumor requires 27 DTs to reach a diameter of 5 mm and 35 DTs to reach 3 cm. At 40 DTs, the tumor is 10 cm in diameter; however, most patients die before this occurs. Tumor DT has been shown to be an independent predictor of mortality.”

A table from Chest X-Ray Your Thoracic Imaging Resource (Published June 2000, Revised July 2004, Jud W. Gurney, M.D. FACR, Department of Radiology, Nebraska Medical Center) shows the medically accepted standards of doubling times required for a tumor to reach a designated size.

Natural History of Growth

Doublings

Cells

Diameter

0

1

10 um

microscopic

20

1 x 10⁶

1 mm

microscopic

30

1 x 10⁹

1 cm

Detectable CXR

35

1 x 10^10.5

3 cm

Average Diagnosis

40

1 x 10¹²

10 cm

Death

Equation for Doubling time = T_i x log2 / 3 x log(D_i/D_o) or (ln2 x T_i)/(ln(V_i/V_o)

 T_i = interval time

 D_i = initial diameter

 D_o = final diameter

 V_i = initial volume

 V_o = final volume (Atch 28)

ADENOCARCINOMA - DOUBLING TIME 180 DAYS

McWilliams A, MacAulay C, Gazdar AF, Lam S. Innovative molecular and imaging approaches for the detection of lung cancer and its precursor lesions. Oncogene.2002;21:6949–6959.

The article Innovative molecular and imaging approaches for the detection of lung cancer and its precursor lesions (Oncogene 7 October 2002, Volume 21, Number 45, Pages 6949-6959 Annette McWilliams, et. al.) reports:

“Tumour volume doubling time (VDT) in lung cancer is known to be an independent prognostic factor Evaluation of VDT has shown wide variation between different cell types with the shortest times seen, as expected, in small cell lung cancers and the longest in adenocarcinoma.”

From the National Cancer Institute SEERS site: (http://www.seer.cancer.gov/)

The National Cancer Institute's Surveillance, Epidemiology and End Results (SEER) Program Web Based Training Modules (http://www.training.seer.cancer.gov/) report:

“All three subtypes of NSCLC develop differently. Treatments are often based on the location of the particular cancer and its rate of spread. Most adenocarcinomas begin in the middle of the lungs; but about 25 percent develop along the lung periphery. These tumors are small, and the cells double about every 180 days also. They are likely to metastasize early. The form known as bronchoalveolar adenocarcinoma develops in the alveoli and may spread through the airways to other parts of the lung”

Reich J. Stage Ia Lung Cancer Size And Survival. Chest. 2004;126(1):310-311.

The article Stage IA Lung Cancer Size and Survival (Chest. 2004;126:310-311.
American College of Chest Physicians) reports,

“Three tumor volume doublings are required to double the diameter of a spherical tumor. The cost-effectiveness article employed a TVDT of 180 days, the doubling time of the "average adenocarcinoma," most of which grow faster than stage IA adenocarcinomas. The improvement in survival produced by LDCT length-biased sampling and overdiagnosis are not quantifiable. Conflating the (smaller) LDCT-ascertained stage IA LCs (with their 3-year lead-time bias) with cases ascertained by other means undoubtedly contributed substantially to the difference in survival in patients with LCs 2 cm vs > 2 cm.”

Yankelevitz DF, Gupta R, Zhao B, Henschke CI. Small pulmonary nodules: evaluation with repeat CT—preliminary experience. Radiology. 1999;212:561–6.

The article Small Pulmonary Nodules: Evaluation with Repeat CT-Preliminary Experience (Radiology. 1999;212:561-566.) states,

“To estimate tumor growth, we calculated the expected growth of nodules with different diameters by using an exponential growth model. Assuming the nodules were spherical and initially of diameters of 5, 10, 15, and 20 mm, we calculated the new diameters within 1–4 weeks by using doubling times of 30, 90, 120, 150, and 180 days. These doubling times roughly correspond to those of a very aggressive small cell carcinoma (30-day doubling time), a squamous cell carcinoma (90-day doubling time), a large cell carcinoma (120-day doubling time), and an aggressive and average adenocarcinoma (150- and 180-day doubling time, respectively)

EDUCATION EXHIBIT - Invited Commentary • Authors' Response (RadioGraphics 2004;24:1632-1636, Cris A. Meyer, MD & Ralph T. Shipley, MD

Department of Radiology, The University Hospital, Cincinnati, Ohio) states, “At histologic analysis, pure ground-glass attenuation represents atypical adenomatous hyperplasia or BAC in situ, not the typical invasive adenocarcinoma detected in smokers. Furthermore, doubling times for pure ground-glass attenuation lesions are reported to be 880 days or more, in contrast to typical adenocarcinomas, whose doubling times average 180 days.

Wisnivesky JP, Mushlin AI, Sicherman N, Henschke C. The cost-effectiveness of low-dose CT screening for lung cancer: preliminary results of baseline screening. Chest 2003;124:614–621.

The Cost-Effectiveness of Low-Dose CT Screening for Lung Cancer^*

Preliminary Results of Baseline Screening (Chest. American College of Chest Physicians 2003;124:614-621, Wisnivesky, et. al) reports:

“For the purpose of the analysis, life expectancy was estimated as the stage-specific expected survival time following diagnosis. However, there is usually an interval of time between the diagnosis of lung cancer by screening CT scan and when it would have been detected due to the development of symptoms (i.e., the lead time). Thus, to compensate for this difference, lead time was incorporated into the model as a period of time added to the life expectancy of the unscreened individuals. To estimate the lead time introduced by CT scan screening for stage I tumors, we calculated, using doubling times, how long it would take for a malignant nodule to grow from the usual size of CT scan-detected stage I cancers to the usual size of symptom-detected stage I malignancies. We estimated, based on ELCAP and SEER data, a median size of 10 mm and 20 mm, respectively, for CT scan screen-detected tumors and symptom-detected stage I tumors. Thus, using the exponential growth model and a doubling time of 180 days (roughly corresponding to the doubling time for an average adenocarcinoma), we estimated that it would take three doubling times, or approximately 1.5 years, for a screen-detected malignancy to grow to the average size of a stage I symptom-detected tumor.

From the Electronic Curriculum of Salisbury University:

Cancer of the Lung

Robert L. Joyner, Jr., PhD, RRT

Associate Professor and Chair

Department of Health Sciences

Director, Respiratory Therapy Program

Salisbury University

Non-Small-Cell Lung Cancer

 Arises from mucus glands of tracheobronchial tree.

 Glandular configuration and mucus production distinguishes adenocarcinoma from other types of bronchogenic carcinomas.

 Most common lung cancer in women and in people who do not smoke.

 Usually found in the peripheral regions of lung parenchyma.

 Moderate growth rate (doubling time is about 180 days)

 Metastatic tendency is early.

 Secondary cavity formation and pleural effusions are common (Available at: http://www.salisbury.edu/healthsci/resp/classes/rljoyner/

spring/RESP304/15LngCx.htm)

From: Stony Brook University – Health Science Center - Suffolk County New York:

CPR: Pulmonary 26

November 20, 1998

9:00-10:00

Lecturer: Dr. Sachs

CLINICAL FEATURES OF LUNG CANCER

Adenocarcinoma (30% of lung cancers)

· typical scar carcinoma

· tends to arise in the periphery

· also grows in the airways, but starts in more peripheral airways

· tends to metastasize earlier than squamous cell in its course

· doubling time is about 180 days

· has a bronchoalveolar cell variant, which looks almost like normal alveolar tissue and is sometimes a very difficult diagnosis to make radiographically, it looks like a chronic pneumonia because it looks like an infiltrate except that it doesn’t resolve with antibiotic therapy (this is often how people wind up getting diagnosed) (Available at: http://ibm-bladeserver.informatics.sunysb.edu/som/students/2001/

noteservice/l26.doc)

TIME OF INCURRENCE BASED ON DOUBLING TIMES

Wisnivesky JP, Yankelevitz D, Henschke CI. Stage of lung cancer in relation to its size. Part 1. Insights. Chest. 2005;127:1132–1135. doi: 10.1378/chest.127.4.1136.

Stage of Lung Cancer in Relation to Its Size^* (Chest. American College of Chest Physicians, 2005;127:1132-1135.) Yankelevitz, Wisnivesky, MD, & Henschke,)PhD, MD, FCCP ^* From the Department of Radiology (Drs. Yankelvitz and Henschke) explains:

“As the size threshold for detection is significantly smaller for CT than CXR, it is far more likely that a cancer not detected in the CXR study arm grows beyond the 3 cm threshold during the 1-year interval between screenings, relative to a cancer not detected in the CT arm. As an example, let us consider an adenocarcinoma with a volume doubling time of 180 days. It would take a 2-cm cancer < 1 year (315 days) to grow to 3 cm, while for a 0.5-cm cancer it would take > 4 years (1,400 days) to grow to 3 cm. Thus, CT screening would still be beneficial, as a much higher percentage of cancers would be detected by repeat screening before it crossed the 3-cm threshold, after which stage progression occurs even by the admission of the P/G group.”

Black WC .Unexpected observations on tumor size and survival in stage IA non-small cell lung cancer. Chest. 2000 Jun; 117(6):1532-4.

In the Editorial Unexpected Observations on Tumor Size and Survival in Stage IA Non-small-Cell Lung Cancer (CHEST, 117(6):1532-1534, 2000, American College of Chest Physicians, William C. Black, MD , Dartmouth Medical School Lebanon, NH.) explains,

“Let me begin by offering three reasons why there should be a causal inverse relationship between tumor size and survival. First, considering any individual case, if a lung cancer is diagnosed when it is small instead of when it is large, then survival, which is measured from the time of diagnosis, should be increased by the lead time from earlier diagnosis. For example, at a constant doubling time of 180 days, it takes about 2.3 years for a tumor to grow from a diameter of 1.0 cm to 3.0 cm. Thus, assuming no additional benefit of earlier detection, a patient should live about 2.3 years longer when the tumor is diagnosed at a diameter of 1.0 cm vs 3.0 cm.”

[free_spirit_etc]

As far as the remand.... IF the judge would not grant SC based on the premise that my husband's cancer started in service, I was hoping to have enough information in the file to substantiate asbestos exposure. The VA examiner who opined in 2002 that my husband's cancer was not related to any asbestos exposure, determined my husband wasn't exposed to asbestos because he wasn't a part of any medical surveillance, etc. Since he presumed my husband wasn't exposed to asbestos, the BVA shouldn't be able to rely on that opinion (though the RO did).

So I have tried to decide whether to go ahead and seek a medical opinion on the asbestos exposure issue, or whether to wait and see if that is even necessary.

And one of the reasons I started this thread was to ask about OTHER conditions that my husband claimed through the years. If I find his discharge physical that shows some of the things they said his SMRs didn't show - then wondered about reopening those claims for accrued benefits.

Or I also wondered about asking to have the cancer claim decided but to remand for further development of any other issues - and ask for the VA to try to obtain his discharge physical.

[free_spirit_etc]

"Free spirit , often a discharge physical never reflects any notes or nexus to a current disability, or a disability of any deceased veteran."

Berta,

As far as the discharge physical - I wasn't concerned about it so much for my DIC claim, or my husband's cancer claim. But I did try to get a copy before getting my IMOs. I wanted to either get a copy, or get the VA's written confirmation that there was not a copy in his file prior to getting an IMO about the cancer because I didn't want to get my IMOs and then have the VA suddenly have the discharge physical available that had not been considered by my IMO doctors.

But my concern with the discharge physical for accrued benefits is that I notice that most claims include in their reasoning what the discharge physical, separation exam, etc state. Most of the time they will discuss whether the condition was noted or shown upon separation from the service.

Several conditions that my husband claimed for at the time of his separation, (i.e. He signed his claim August 1998 and retired September 1998) were denied, but used the reasoning the SMRs didn't show this or that. But they remained mysteriously silent about the discharge physical. We had previously assumed the discharge physical was in his file. We didn't realize it wasn't until we tried to get a copy. But looking over his claims it is becoming more and more apparent that it was never in his file when they decided any of his claims, even the conditions he claimed when he was discharged.

In retrospect, had we known what we know now (about both the missing discharge physical and about VA law) my husband probably could have easily argued that the conditions were noted at discharge (as they were reported to the VA at this time). But it is too late to make that argument now, as those decisions became final.

BUT if I can ever get my hands on a copy of the discharge physical, then I can ask to have those claims reopened and re-adjudicated.

[free_spirit_etc]

"Focus is everything for many of us widows."

Yes. I have to remember to keep most of my focus on the DIC claim. That is the important one. The other ones are more my wanting to stubbornly keep defending my husband's previous claims because I think he had valid claims and I think the VA hustled him.