Final Argument To Bva - In Service Onset

[free_spirit_etc]

I am working on drafting my final arguments to present to the BVA. Note - I already had my hearing in September. So this would just be a follow-up written argument.

This argument addresses the in-service onset part of the claim.

I am certainly open to feedback

IN SERVICE ONSET

1. My husband was diagnosed with lung cancer, and had a 3.1 cm tumor removed, within a short time after his retirement from a 28-year career in the Air Force.

2. §3.303(d) clearly 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.”

3. M21-1MR, Part IV, Subpart ii, Chapter 2, Section B, 3 c. states “Consider whether direct service connection may be established under 38 CFR 3.303(d), even if service connection is claimed for a disease diagnosed after service has ended. Service connection may be granted for a disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service.

Do not attempt to establish presumptive service connection for chronic or tropical diseases until the possibility of establishing direct service connection has been ruled out.”

4. Competent medical evidence establishes my husband’s lung cancer had its inception during service, and thus was incurred coincident with his service in the Armed Forces. § 3.303 (a)

5. Two Independent Medical Opinions were submitted at my September 3, 2013 Board Hearing. Both specialists clearly stated that it is more likely than not that my husband’s cancer had its onset while he was serving in the Air Force.

6. Both opinions were written by specialists who are Board Certified in their respective fields in oncology. Both specialists are faculty members at major medical schools and have applicable experience in clinical practice. Both opinions were based on pertinent evidence in the record. Both opinions were well-articulated.

7. There is no medical opinion, nor medical evidence in the record, that conflicts with the recently submitted medical opinions.

8. Though the Supplemental Statement of Case pointed out my husband’s 1996 chest x-ray did not show evidence of cancer, both specialists indicated that it takes a significant amount of time from the point when a cancer starts until it is detectable by x-ray. Dr. XXX, a radiation oncologist, pointed out that chest x-rays can be poor instruments for detecting early stage lung cancer, that false negatives are well documented, and that chest x-rays are known to miss the majority of lung cancers for most of the tumor’s lifespan. This is further supported by evidence from peer reviewed journal articles submitted during my husband’s lifetime.

9. The VA medical examiner’s October 19, 2007 opinion is a rather brief, handwritten note that opines that the signs and symptoms reported in my husband’s SMRs were less likely than not early manifestations of my husband’s cancer.

10. Both Independent Medical Opinions addressed the fact that lung cancer is most often asymptomatic during much of its development. This is further supported by evidence my husband submitted from the U.S. National Cancer Institute's Surveillance, Epidemiology and End Results Program SEER's Training Modules, U.S. Preventive Services Task Force Guide to Clinical Preventive Services, the American Cancer Society, as well as excerpts from articles in peer reviewed medical journals.

11. The VA examiner did not indicate my husband’s lung cancer was not present in service. He merely stated the signs and symptoms reported in my husband’s SMRs were less likely than not early manifestations of the lung cancer. Additionally, he only mentioned the viral respiratory illnesses, and did not discuss the non-viral respiratory illnesses, such as my husband’s chronic bronchitis (initially diagnosed in January 1985).

12. The VA examiner did not actually address the issue of whether my husband’s cancer had its onset in service. However, there was ample evidence in the C-file at that time asserting my husband’s cancer had its onset while he was in the service, and the VA examiner did not refute this in his opinion.

13. There is nothing in the VA examiner's opinion that conflicts with the two Independent Medical Opinions, or the other evidence we have submitted in support of the claim.

14. Though the Supplemental Statement of Case indicated there is no statement from Dr. XXXX in the file which suggests that my husband’s cancer was present during service, my husband submitted the handwritten note from Dr. XXXX when he filed his initial claim for lung cancer.

15. Dr.XXXX noted the doubling times of various types of cancer, starred the “Adeno CA,” noted it was 3.1 cm, and noted DT (doubling time) 6 months. He additionally noted “15 yrs till 1 cm.” Dr.XXX then noted several more sizes, and then noted “3.25 ß 35.”

16. My husband submitted supportive evidence to show that what Dr. XXX had noted was based on sound medical reasoning. The evidence submitted supported the fact that his tumor was 3.1 cm when diagnosed, that adenocarcinoma of the lung has a standard doubling time of 6 months (180 days), that evidence from several sources showed that it generally takes a tumor doubling 30 times to reach the size of 1 cm, 30 doublings X 180 days = 15 years (which Dr. XXX noted “15 yrs till 1 cm”) and that it generally takes a tumor doubling 35 times to reach the size my husband’s tumor was when it was diagnosed.

17. Though Dr.XXXX handwritten note was not fully-articulated, the supporting evidence shows it was based on established medical principles. Considering the fact that my husband had a 3.1 cm tumor removed 2 years post-retirement, his treating physician noting that it would take that type of cancer 15 years to reach the size of 1 cm certainly suggests that my husband’s cancer was present in service.

18. The two recently submitted Independent Medical Opinions further substantiated the same information.

19. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did.

20. Entitlement to service connection based on doubling time and growth rates of cancer is neither unique, nor rare. Service connection has been granted on this basis in numerous claims.

21. “When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996).” (BVA Citation Nr: 1317665 DOCKET NO. 00-04 807 Decision Date: 05/30/13)

22. I believe that I have established that it is more likely than not that my husband’s cancer started during the time that he was serving in the Air Force, and I respectfully request that service connection be granted for his illness and his death.

[free_spirit_etc]

Note - I was trying to point out some of the evidence submitted by my husband to boost the evidence for the accrued benefits claim -- pointing out evidence in the record at the time of my husband's death. I am not sure if it is better to add it to this argument, or address it in a argument specifically for accrued benefits.

[Berta]

I think this is excellent free-spirit!

It is well written and to the point.

It is very possible that those 2 IMos will grant the claim and you pointed out why.

This is good too:

17. Though Dr.XXXX handwritten note was not fully-articulated, the supporting evidence shows it was based on established medical principles.

I used as evidence a handwritten entry in my husband's med recs (that was crossed out but not by the doctor who wrote it and that brief entry of his became my third IMO, because I contacted him by email on the entry.

Also:

“20. Entitlement to service connection based on doubling time and growth rates of cancer is neither unique, nor rare. Service connection has been granted on this basis in numerous claims. “

Although the BVA doesn't consider their past decisions to be probative to anyone but the specific vet the decision is for ,I think it is good that you made this statement here, as to the doubling time and growth rates.

And I assume you have those decision links somewhere.but I dont think BVA would even ask for them.

I Love the way you put this:

“19. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did. “

It pays to make statements with confidence and at the same time negate any VA opinion that you feel is not competent at all. I found that a VA doc's opinions (I knocked down two of his opinions) came from a very competent VA doctor who ,after we argued and then made up, was under pressure to prepare an opinion specifically geared to deny my claim. That is what VA wanted from him. However his opinion was parsed because he DID add a very important statement to the opinion and the last 6 words of it were left out in the SSOC. Those 6 words alone could have changed the tide right away.

The words of his exam that the RO left out were something to the affect “unless an autopsy had been done”,meaning an autopsy could have altered his opinion completely.

Not only had an autopsy been done, it fully supported that claim and the VA conveniently ignored 13 copies of it from me and deliberately did not give it to this C & P doctor. Boy how low can they go??????

When he found out there was an autopsy the RO kept from him, and that it supported my claim, he was livid and told me he absolutely hated doing C & P exams.I think stuff like that had happened to him before.

We widows have to keep a clear head ,as you did here, because the VA knows we deal with grief and that alone makes these claims so hard to handle.

You did VERY well here.

I only hope the VA regards those IMOs as fully outweighing the C & P doctor.They should because you have 2 For and one against.......Relative Equipoise SHOULD kick in.

Unless the VA specifically denied the accrued claim.in the same SOC this statement is based on ..I would leave that out at this point because accrued claims are a specific issue.

You could however tell them that a proper azaward of DIC based in all of the evidence should warrant an accrued award.

But it must be based entirely on your husband's pending claim at death, that was still in progress when he died.

You did a great job here.

[free_spirit_etc]

I think this is excellent free-spirit!

Thanks!

It is well written and to the point.

It is very possible that those 2 IMos will grant the claim and you pointed out why.

This is good too:

17. Though Dr.XXXX handwritten note was not fully-articulated, the supporting evidence shows it was based on established medical principles.

I used as evidence a handwritten entry in my husband's med recs (that was crossed out but not by the doctor who wrote it and that brief entry of his became my third IMO, because I contacted him by email on the entry.

I am hoping that argument finally convinces them that the note from the doctor is competent and probative evidence. This doctor actually agreed to write an IMO, but then called and told my husband that the Base attorney said the doctors are not allowed to write opinions for VA claims. L

Also:

“20. Entitlement to service connection based on doubling time and growth rates of cancer is neither unique, nor rare. Service connection has been granted on this basis in numerous claims. “

Although the BVA doesn't consider their past decisions to be probative to anyone but the specific vet the decision is for ,I think it is good that you made this statement here, as to the doubling time and growth rates.

And I assume you have those decision links somewhere.but I dont think BVA would even ask for them.

I did want to point out that granting on this theory is actually pretty common. I am just hoping they don’t do a search and end up coming up with one of the rare decisions that actually denied the claim. I guess I could include a few cases as an attachment, to help deter any possibility that they might want to do a search. Actually, when I initially just started searching for doubling time and cancer, I found that most claims that advanced that theory were granted. Most of the ones that were not granted had one of the VA examiner’s opining that it would be impossible to now without resorting to speculation, and the veteran / widow only submitting treatises without an accompanying medical opinion. However, there are a few where the private doctors and the VA doctors went back and forth for several rounds with their opinions. In most cases, even if the VA examiner stated that they couldn’t opine, without resorting to speculation – the claim was granted as long as the vet / widow had a supportive IMO- because the VA examiner didn’t directly refute the IMO – they merely said they couldn’t know. Now if the VA examiner directly stated the private doctor resorted to speculation – that is a different matter.

But good point in that I might want to include several BVA decisions that support my point to help prevent them from digging and uncovering that 1 out of 20 that might not support it.

I Love the way you put this:

“19. The only competent medical evidence in the record that specifically addresses whether it is more likely than not my husband’s cancer had its onset in service clearly establishes that it did. “

I actually borrowed that line from a BVA case ;)

It pays to make statements with confidence and at the same time negate any VA opinion that you feel is not competent at all.

I don’t really think the VA examiner’s opinion is very competent. He barely backed what he said. He just wrote a few lines. He didn’t even address the issue they said he addressed (whether the cancer had its onset in service. He successfully side-stepped that issue by merely talking about in-service treatment.

But I was hesitant to point out that the opinion wasn’t really all that adequate, because that could trigger them to remand for a more adequate opinion, which could hold up the claim forever, as well as give them another shot at creating an opinion against my claim.

So I figured it might be best to play along and pretend along with them that it is an adequate opinion, but point out that it does not actually conflict with our argument that my husband’s cancer started in service – and that it doesn’t conflict with the IMOs.

Sure. Okay. I agree with your doctor. The viral illnesses my husband was treated for in service were not early manifestations of his lung cancer. I agree. However, that does not conflict with the evidence that his cancer actually started in service. It is an established medical principle that most lung cancer is asymptomatic until late stages. So my husband could have cancer in service AND be treated for viral illnesses that had nothing to do with his cancer.

I found that a VA doc's opinions (I knocked down two of his opinions) came from a very competent VA doctor who ,after we argued and then made up, was under pressure to prepare an opinion specifically geared to deny my claim. That is what VA wanted from him.

That crap just ticks me off!

However his opinion was parsed because he DID add a very important statement to the opinion and the last 6 words of it were left out in the SSOC. Those 6 words alone could have changed the tide right away.

Yep. That is evidence that the RO DOES know how to read. They like is to believe they didn’t bother to read everything. But they actually read the stuff and know exactly what to ignore and exactly what to distort (and exactly how to distort it and so it looks like they didn’t distort it at all)

The words of his exam that the RO left out were something to the affect “unless an autopsy had been done”,meaning an autopsy could have altered his opinion completely.

Not only had an autopsy been done, it fully supported that claim and the VA conveniently ignored 13 copies of it from me and deliberately did not give it to this C & P doctor. Boy how low can they go??????

VERY low apparently…..

When he found out there was an autopsy the RO kept from him, and that it supported my claim, he was livid and told me he absolutely hated doing C & P exams.I think stuff like that had happened to him before.

I think they have a term for the kind of stuff the VA pulled with you. The word “evil” comes to mind…

We widows have to keep a clear head ,as you did here, because the VA knows we deal with grief and that alone makes these claims so hard to handle.

Yep. I totally agree!

You did VERY well here.

I only hope the VA regards those IMOs as fully outweighing the C & P doctor.They should because you have 2 For and one against.......Relative Equipoise SHOULD kick in.

I also tried to point out that it isn’t just two against one. I tried to point out that the VA examiner’s opinion doesn’t actually conflict with the IMOs. They can actually accept ALL three opinions as probative and still grant the claim. His cancer had its onset in service (IMOs) , but the symptoms he was treated for in service were not related to his lung cancer. (VA doc) Their opinions are actually kind of apples and oranges, but they don’t conflict with each other. The VA doctor never actually opined that his cancer did not start in service. And the IMO did not actually opine that he had symptoms of cancer that were treated in service. So none of the opinions were actually opposed to any of the other opinions.

Unless the VA specifically denied the accrued claim.in the same SOC this statement is based on ..I would leave that out at this point because accrued claims are a specific issue.

The SOC did address the accrued benefits claim. It states 2. Entitlement to accrued benefits, due to the death of XXX

It has a couple paragraphs about accrued benefits and then states “ In reviewing the veteran’s entire claim file for service connection for adenocarcinoma of the lungs at the time of his death. However, since the claimed benefits cannot be granted, (see issue # 1 above), we are unable to grant entitlement to accrued benefits as a result of this claim pending at the time of his death, because no accrued benefits would have resulted from this unsuccessful claim.

(** Issue #1 was the DIC claim)

You could however tell them that a proper azaward of DIC based in all of the evidence should warrant an accrued award.

Thanks! Good point. I guess I should also point out in my argument that he died of the cancer. I left that out.

But it must be based entirely on your husband's pending claim at death, that was still in progress when he died.

That is where I thought it would be best to point out several times that my husband had submitted evidence to establish the same facts during his lifetime, even if he hadn’t submitted a fully-articulated IMO. I think that is where it was important to point out that his treating physician noted that it would have taken his type of cancer 15 years to reach 1 cm. It was not in the treatment record, and it wasn’t fully articulated, but it WAS in the record (though the SSOC said there was no statement in the record from the doctor. Uhmmm – yes there was. My husband submitted the handwritten note with his initial claim.

I guess I could point out that 3.159 does not limit competent medical evidence to only what is written in the treatment record or in formalized IMOs.

I also could point out that if the VA denies the claim they are obligated to FULLY explain ALL the evidence in my file that supports my claim because his discharge physical is missing – and so they have a heightened duty to assist.

But I hesitate to point that out because I don’t want them to just remand my claim back to find his discharge physical at this point, as I don’t think it is needed to prove my claim.

However, if they denied the claim without considering – and fully explaining ALL the evidence that supports the claim (and there is A LOT of journal excerpts, treatise evidence, etc) that should be a basis to get a remand from the CVA because they are fully aware that his discharge physical is missing. (I postponed the Hearing twice while I was trying to obtain a copy from them).

But I would MUCH rather just get the claim granted at this point. :)

Edited October 8, 2013 by free_spirit_etc

[Berta]

You have made an excellent point here:

"In most cases, even if the VA examiner stated that they couldn’t opine, without resorting to speculation – the claim was granted as long as the vet / widow had a supportive IMO- because the VA examiner didn’t directly refute the IMO – they merely said they couldn’t know"

This is important for everyone here Free spirit....any opinion that is too speculative is really no opinion at all.

The BVA had my IMos but I had asked for a remand due to the VCAA violation.....The BVA remanded for me to get another VA C & P.(they saw I had enough evidence to potentially mitigate the VCAA error)

I found out this was being done right here at the Bath VA and I called the 'doctor' to find out he was only a PA and not a Cardiologist as BVA had requested in the remand. Yum Yum, nothing wrong with being a PA but not enough expertise to opine on my claim.

I rebutted the C & P as soon as I got it and sent my rebuttal to the BVA saying it was 'too speculative and the PA didnt have the expertise needed.

(I sent the PA a copy of it too. Maybe he learned something from it)

At that point, the BVA sure didnt even try to go on a 'fishing expedition' , as we claimants said in the olden days.... when VA tried to get more than one negative VA opinion, to stack the scales)

the BVA instead knew my IMOs were more competent that this remand opinion and my doctor's credentials far outweighed the VA PA guys.

I was shocked a few weeks later (I had also ordered a 4th IMO from a forensic cardiologist that was not finished yet)

to find still no cardio opinion but instead the BVA award was in my mailbox, agreeing the C & P opinion was too speculative.

Speculation is a good argument to use over a denial. But unfortunately it usually cannot be overruled unless there is a strong IMO because if a claimant rebutts it, even with the best medical knowledge they have gained , VA can still then say the claimant has no medical expertise to make their opinion valid.

It is all truly a war game and it should not be.