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]

"My advise to you is to move your focus from BVA decisions and solely focus on how the VA worded their denials because this wording ,as well as copies of the results of any negative C & P exams, is what you have to overcome via an IMO."

Okay – If I start taking it line by line – here is the first part: (It is a work in process at this moment...)

“The evidence of record shows the veteran died Feb 5, 2007, from adenocarcinoma of the lungs. A review of the treatment records show that he was not diagnosed with lung cancer during the Veteran’s 28-year career in the Air Force.”

§3.303(d) “Postservice initial diagnosis of disease. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.

“The veteran did have several instances of treatment in service for respiratory infections. Because both you and the veteran, prior to the veteran’s death alleged that the adenocarcinoma of the lungs had its onset during the veteran’s service, a request was submitted to the VA examiner, to determine if the veteran’s cancer had its initial onset while serving on active duty.

The VA medical examiner, on October 19, 2007, and upon full review of all in-service medical records and post-service medical records, states that the veteran’s treatment in service for respiratory problems is suggestive of acute manifestations of viral respiratory tract illnesses and that none of these respiratory problems in service can be linked to the development of adenocarcinoma of the lungs.”

(The medical opinion referred to states: “The veteran retired from service 9-30-1999. Therefore, his presumptive terminated 9-30-1999. I have reviewed the SMRs related to treatment for respiratory problems. The symptoms and treatments suggest manifestations of viral respiratory tract illnesses. None of the episodes can be reasonably linked to an early manifestation of lung cancer. After review of the c-file it is my opinion the veteran’s signs and symptoms listed in his SMRs are less likely than not early manifestations of the adenocarcinoma of the lung first diagnosed in September 2000.”)

1. The VA examiner did not address whether the cancer had its initial onset in service in his opinion. The VA examiner only addressed whether the symptoms and treatments for respiratory illnesses listed in my husband’s SMRs could reasonably be linked to his cancer.

2. There is no indication the VA examiner made a full review of the post-service medical records. He only states in his opinion that he “reviewed the SMRs related to treatment for respiratory problems.” He does not state that he reviewed the post-service medical records, and he does not make any reference to anything contained in those records in his report.

3. We have never alleged that any of the symptoms from respiratory illnesses my husband was treated for in service were linked to his lung cancer.

4. In fact, in 2006 we submitted evidence from treatises to show that lung cancer is often asymptomatic in its earlier stages, to rebut the allegation that my husband’s lung cancer could not have been present during service unless it caused noticeable symptoms.

This included information and excerpts from U.S. National Cancer Institute's Surveillance, Epidemiology and End Results Program, Surveillance Epidemiology and End Results (SEER) - Web-based Training Modules, the U.S. Preventive Services Task Force. Guide to Clinical Preventive Services, published in the Columbia University Medical Center’s Guide to Clinical Preventive Services, Second Edition, Neoplastic Diseases Screening for Lung), an article ZD1839 (Iressa^TM) in Non-Small Cell Lung Cancer (The Oncologist, Vol. 7, Suppl 4, 9-15, August 15, 2002, an article A Systematic Review and Lessons Learned From Early Lung Cancer Detection Trials Using Low-Dose Computed Tomography of the Chest, (Cancer Control 10(4):306-314, 2003)the AMERICAN CANCER SOCIETY FACT SHEETS, Case Western Reserve University School of Medicine’s Electronic Curriculum - Pathology of Lung Cancer.

This information was in my husband’s C-file at the time the VA examiner wrote the October 2007 opinion, but the VA examiner did not discuss it. Nor did he state that lung cancer has to produce noticeable symptoms in order to be present. He did not even state that my husband’s cancer did not start in service. He did not offer an opinion in regard to the onset of the cancer. He merely stated that the signs and symptoms listed in my husband’s SMRs suggest manifestations of viral respiratory tract illnesses, and that those illnesses cannot be reasonably linked to early manifestations of his lung cancer.

5. My husband specifically requested assistance from the VA in developing his claim in 2006. He submitted treatise evidence regarding cancer-related fatigue, and asked that the VA consider whether the fatigue that he reported the VA at the time of his 1998 separation from service (as well as other times between the years of 1998 and 2006) could reasonably be linked to his subsequent cancer diagnosis.

This included information and excerpts from National Comprehensive Cancer Network Cancer Related Fatigue TOC Practice Guidelines in Oncology – v.1.2006, Cancer-related fatigue: evolving concepts in evaluation and treatment. (Cancer. 2003 Nov 1;98(9):1786-801, Stasi, et. al.) The National Cancer Institute Fatgiue PDQ - ICD-10 Criteria for Cancer-Related Fatigue, AMERICAN CANCER SOCIETY – CANCER REFERENCE INFORMATION, Recognizing & Preventing Cancer-Related Fatigue (CANCERWISE, M. D. Anderson Cancer Center, APRIL 2002), CANCER-RELATED FATIGUE (Online Journal of Issues in Nursing, September 23, 2003.

This information was in my husband’s C-file at the time the VA examiner wrote the October 2007 opinion, but the VA examiner did not discuss it. Nor did he offer an opinion in respect to whether my husband’s reported fatigue could be related to his lung cancer.

[free_spirit_etc]

Okay... That is what I am coming up with line by line on the FIRST part of the SSOC.

But as far as the VA examiner's opinion - I am not sure whether to even go into all that about what he did and did not say. I am not sure I want to open the door to invite him to clarify his opinion.

It really looks pretty simple. They had their chance. The got to go first. They had their chance to at least take the time to write a decent medical opinion to deny my claim. But they didn't even bother to take the time. It was kind of like a slap in the face that they didn't even think my husband's death was worth the time to even take any trouble to deny. They thought they could just quickly whip up some half-ahem opinion - and be done with it.

So - I am more of the opinion that I should just focus on the opinions I have that support my claim in this part - and point out that the VA examiner's opinion does not conflict with my IMOs or other evidence. I am afraid that if I put a lot of energy into actually refuting his opinion, that might open the door for them to ask him to clarify it, expand it, etc.

[free_spirit_etc]

So, how is this:

“The evidence of record shows the veteran died Feb 5, 2007, from adenocarcinoma of the lungs. A review of the treatment records show that he was not diagnosed with lung cancer during the Veteran’s 28-year career in the Air Force.”

§3.303(d) “Postservice initial diagnosis of disease. States: “Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.”

“The veteran did have several instances of treatment in service for respiratory infections. Because both you and the veteran, prior to the veteran’s death alleged that the adenocarcinoma of the lungs had its onset during the veteran’s service, a request was submitted to the VA examiner, to determine if the veteran’s cancer had its initial onset while serving on active duty.

There are two fully-articulated medical opinions in the record that specifically address the question of whether my husband’s cancer had its initial onset while serving on active duty. These opinions were written by Dr. __ and Dr. ___. Both physicians are Board Certified in the field of oncology. One physician is an Associate Clinical Professor at the University of Washington. One physician is an Assistant Clinical Professor at UCLA David Geffen School of Medicine. Both physicians opined that it is more likely than not that my husband’s cancer had its onset while he was serving on active duty. Their opinions are further supported by the handwritten note from my husband’s pulmonologist, Dr. ___ (which indicates that adenocarcinoma has a doubling time of six months and it takes 35 doublings to reach 3.25 cm.), the letter from my husband’s treating oncologist, Dr. ___ (which states that it is the accepted standard that my husband’s type of cancer has a mean doubling time of 180 days), and a wealth of treatise evidence my husband submitted during his lifetime. There is nothing in the VA examiner's opinion that conflicts with these two Independent Medical Opinions, or the other evidence submitted in support of the claim.

The VA examiner did not offer an opinion in regard to whether my husband’s cancer had its initial onset while he was serving on active duty. He merely addressed whether the symptoms and treatments listed in my husband’s SMRs could be linked to his cancer.

The VA medical examiner, on October 19, 2007, and upon full review of all in-service medical records and post-service medical records, states that the veteran’s treatment in service for respiratory problems is suggestive of acute manifestations of viral respiratory tract illnesses and that none of these respiratory problems in service can be linked to the development of adenocarcinoma of the lungs.”

Though it does not appear that the VA examiner read the post-service medical records (He only stated he reviewed the SMRs related to treatment for respiratory problems), I do not disagree with the VA examiner’s opinion. We have never alleged that the signs and symptoms of viral respiratory illnesses listed in my husband’s SMRs were early manifestations of lung cancer.

In his Independent Medical Opinion, Dr. XXX pointed out that it is well accepted that the majority of a tumor’s life span is “pre-clinical,” where it is too small to cause symptoms. He stated that the majority of cancers are not detected until the disease is advanced and / or spread to other parts of the body. There is nothing in the VA examiner's opinion that conflicts with this.

[free_spirit_etc]

Continuing on addressing the next part of the SSOC:

“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.”

The Regional Office was in error to rely on the March 2002 medical opinion to deny my claim on the basis of asbestos exposure. The examiner clearly indicated in his opinion that he presumed my husband was not exposed to asbestos. To concede that my husband was exposed to asbestos, but continue to rely on an opinion that presumed my husband was not exposed to asbestos is clearly erroneous. My husband conceded the fact that his smoking most likely played a role in the development of his lung cancer. However, he maintained that his exposure to asbestos also played a contributing role. Due to the well-documented synergetic effect of the combination of smoking and asbestos exposure, I would not expect the VA to rely on a medical opinion that doesn't even take my husband's asbestos exposure into consideration, in order to deny my claim.

Additionally, we submitted a request that the VA consider this opinion inadequate during my husband’s lifetime. The Regional Office did not address our request, yet continued to rely on the opinion. Reasons we considered the opinion inadequate included:

1. The examiner presumed my husband was not exposed to asbestos because his medical records did not indicate any industrial hygiene surveys or show any evidence of any unique occupational health surveillance programs. However, the examiner did not discuss the fact that my husband could not have been part of any such programs because the Air Force did not have any occupational safety programs for asbestos until after the mid 1980’s.

2. The examiner gave no reason why he ignored the evidence in my husband’s medical records that indicated asbestos exposure including:

a. History / Progress Notes dated September 20, 2000. XXXX Hospital – Dr. XXXXX, M.D. (Surgeon) states: “Patient admits to asbestos exposure through wire insulation while working as an electrician.”

b.

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

c. Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. XXXX (In Medical Records from XXXXAir Force Base) states: “CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN

Also likely asbestos exposure as electrician 1969 – 1982

d. New Patient Note 10/10/2001 – XXXX, MD – Oncologist

(In Medical Records from XXX 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.”

3. The Examiner stated my husband did not have any unique medical conditions that are associated with asbestos. However, he failed to mention my husband had a diagnosis of Interstitial Lung Disease, confirmed with both x-rays and a pathology report. The examiner did not mention the diagnosis, or provide any rationale based on sound medical principals for making a determination that my husband’s Interstitial Lung Disease was not a unique medical condition that is associated with asbestos.

4. The examiner did not examine my husband, and issued the opinion after a review of the records, yet issued the report as a “Respiratory Disease, Miscellaneous Exam,” which is somewhat misleading. This is especially important as the examiner stated my husband did not have any apparent residuals from the lung cancer without so much as talking to him.

5. The examiner stated my husband had no shortness of breath (and no apparent residuals from his lung cancer), though the pulmonary function tests done at the same VA facility on the same day noted that he had dyspnea on hills and stairs, frequent wheezing, a decreased FVC (73% predicted) and a decreased FEV1 (69% predicated).

6. The examiner did not order a DLCO test before issuing an opinion that my husband did not have any apparent residuals from his lung cancer (and resulting lobectomy) though the medical records show my husband’s DLCO was 51% in 2001. The C&P Service Clinician’s Guide 6.1 d) 4. states “. Unless an explanation for its omission is provided, the DLCO should be done.”

Though my husband submitted a written request that the VA consider the examiner’s opinion inadequate, and articulated the reasons why, the Regional Office never responded to his request, never ordered another exam or opinion during my husband’s lifetime, and continued to rely on the opinion as a reason to deny the claim after his death.

The evidence of record clearly shows:

1. It is more likely than not my husband was exposed to asbestos through his work as an electrician in the Air Force from 1970 – 1893. (This is substantiated through my husband’s own statements of the types of work he did, statements provided from veterans who worked with my husband, and the fact that my husband’s occupation is one that is frequently associated with asbestos exposure.)

2. That my husband was exposed to asbestos at a time when workers were not protected from the potential negative effects of that exposure. The evidence shows the Air Force did not have any safety programs (Hazmat training, respiratory protection, medical surveillance, etc.) for asbestos in place until the mid-1980’s.

3. That asbestos exposure was related with my husband’s cancer from the time of its diagnosis. His initial records with the surgeon, oncologist, and pulmonologist all note asbestos exposure or probable asbestos exposure as part of his relevant medical history.

4. My husband’s treating pulmonologist at XXX Air Force Base noted that asbestos exposure substantially increased his risk of getting lung cancer. Dr. XXX gave my husband a handwritten note that says:

“Former Smoker Best is 1.4 Times

Smoker 10

Asbestos 8

Together --- 80 ß--- Now”

When he met with my husband in October 2001.

Additionally, Dr. XXX re-iterated this risk when he noted in Chronological Record of Medical Care 11/5/2003 - (In Medical Records from xxxx Air Force Base):

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

5. Dr. XXX’s notation is supported by sound medical reasoning, as there is a wealth of medical literature that reinforces that the combination of asbestos exposure and smoking greatly increases the risk of lung cancer. This information is reported by such agencies as The Environmental Protection Agency, The Agency for Toxic Substance and Disease Registry, The American Lung Association, The National Institute for Occupational Safety and Health, the American Cancer Society, and the Surgeon General.

Despite the evidence in my husband’s C-file that my husband was exposed to asbestos, that he was exposed at a time when workers were not afforded any protection, that his treating physicians all noted asbestos exposure as relevant medical history in regard to his cancer, and that exposure to asbestos increased the risk of lung cancer (especially when combined with smoking) the Regional Office still relied on the VA examiner’s 2002 medical opinion that asbestos exposure did not contribute to my husband’s lung cancer as the examiner presumed he was not exposed to asbestos.

[free_spirit_etc]

Moving right along on the SSOC:

"Additionally, Mr. XXX also maintained that his adenocarcinoma of the lungs was present during his active service, given the slow growing nature of the tumor. In support of this contention, both you and the veteran submited several journal articles and clippings which show that adenocarcinoma of thelungs has a douibling rate of approximately 180 days. The contention was that because of its slow growth rate, and the fact that the cancer was found and surgically removed in September 2000, at XXX, that the cancer must have been present during active service."

My husband initially filed a claim for service connection for his cancer in October 2001, over a year after it was diagnosed. He explained in his letter that his doctor informed him that because of the growth rate of the type of cancer he had, that his cancer had most likely been present for a significant amount of time before he retired from the military. To support this, my husband included a copy of the handwritten note the doctor gave my husband when he was explaining the facts to him. The note included the fact that adenocarcinoma has a doubling time of 6 months, that at the standard growth rate adenocarcinoma would take 15 years for a tumor to reach 1 cm, and that it would take the cancer doubling 5 more times to reach the size of 3.25 cm (the approximate size my husband’s tumor was when it was diagnosed in 2000.)

The journal articles we submitted substantiated that the information my husband’s doctor told him, and wrote on the handwritten note was based on sound medical principles. We submitted treatise evidence from relaibe sources that confirmed that the standard doubling time of adenocarcinoma of the lung is 180 days. (The note from the doctor stated 6 months), that it takes a tumor doubling approximatley 30 times to reach the size of 1 cm (the note from the doctor said 15 years * Note 30 doublings Xs 6 months = 15 years), and that it takes cancer doubling 35 times to be 3 cm (the doctor’s note stated 3.25 ß------- 35) The doctor also noted “Adeno CA 3.1 cm,” which is the type of cancer my husband had and the size it was when it was removed.

The Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999). Additionally Hensley, 212 F.3d 1255 (Fed. Cir. 2000) states: “A veteran with a competent medical diagnosis of a current disorder may invoke an accepted medical treatise in order to establish the required nexus; in an appropriate case it should not be necessary to obtain the services of medical personnel to show how the treatise applies to his case.8 See also Wallin v. West, 11 Vet. App. 509, 514 (1998) (holding that medical treatises can serve as the requisite evidence of nexus).

The treatise evidence we submitted was not based on an unsubstantiated lay medical opinion. My husband was not the one who decided his cancer started while he was in the service. His doctor informed him that it did. His doctor also provided him with a handwritten note that gave him the medical reasoning to explain why he was telling him that. The treatise evidence was submitted to help establish the fact that the information given to my husband by his treating physician was based on sound medical principles. The treatise evidence, when combined with the handwritten note of the doctor, discussed the facts with enough certainty that there was at least a “plausible causality” that it was more likely than not that it would have taken longer than two years for my husband’s tumor to grow to 3.1 cm.

This has been substantiated by two Independent Medical Opinions that have since been associated with the claim.

Edited September 30, 2013 by free_spirit_etc

[free_spirit_etc]

And more SSOC:

The veteran’s chest X-ray, taken June 24, 1996, just 2 years prior to his retirement from the Air Force, shows no evidence of a lesion or opacity consistent with lung cancer.

The Independent Medical Opinion written by Dr. XXXX states “it takes from 5 to 10 years (and in some cases much longer) for a single human cell to transform from a microscopic cancerous form into a tumor that is large enough to be discovered on physical exam, by x-ray or by blood test.”

The Independent Medical Opinion written by Dr. XXX states “Finally, the fact the veteran’s cancer was not detected on the 1996 chest x-ray is to be expected and not a certain indication that the cancer was not present in 1996. It merely indicates the cancer was not detected at that time with that x-ray. Chest x-rays are notorious for being poor instruments for detecting early stage lung cancer. Randomized controlled trials have consistently found chest radiographs have very limited use in screening for cancer. They are not sensitive enough to detect small tumors, and even many large tumors frequently remain undetected for a variety of reasons. Another way of stating this is that the false negative rates of chest X-rays are well documented and they are known to miss most lung cancers for the majority of the tumors life span. “

The medical evidence clearly shows that a negative chest x-ray is not proof that someone does not have cancer.