New And Material Evidence

[free_spirit_etc]

Hi Everyone! I've been as busy as heck since school started! We just got a letter from the VA -- I guess it is our letter that is "supposed" to tell us exactly what we need to send to substantiate his claim for lung cancer. However, it mostly just lists "all medical records...pharmacy prescription reports,..etc..etc..

My husband previously applied for SC for lung cancer (under the premise that it STARTED in service..though not diagnosed until 2 years post retirement) --and he included a secondary connection for cancer related to asbestos exposure.

The VA has never addressed the DIRECT connection - and previously denied him for the secondary connection --

Now the letter states:

You were previously denied service connection blah blah blah... On order for us to reopen your claim, we need new and material evidence.

It also sates "in order to be material, the additional evidence must pertain to the reason your claim was previously denied.

Your claim was previously denied because your service medical records do not show any respiratory problems in seervice or exposure to asbestos. Therefore the evidence you submit must relate to this fact."

????????????????

They have failed to acknowledge that we have repeatedly requested that they consider the DIRECT service connection aspect of this claim.

Can they limit the evidence they consider only to those two things?

And it is HARD to send them NEW service medical records --though we can point out AGAIN that his service medical records DO show respiratory problems

[john999]

Get a doctor to review the SMR's and say that the lung cancer is due to asbestos. Then it would be new and material.

[LarryJ]

your service medical records do not show any respiratory problems in seervice or exposure to asbestos. Therefore the evidence you submit must relate to this fact."

You are going to have to prove to them that:

#1. He had respiratory problems in service.

#2. He was, in fact, exposed to asbestos.

His service medical records need to indicate that he had respiratory problems. I know you say that you have pointed it out to them, but you are going to have to make a really big point of pointing it out, again.

Have a doctor look over his SMRs and refer to the appropriate SMR and give a medical nexus to link his cancer to the SMRs.

Then, you will have to provide an occasion whereby he was in contact or close proximity to asbestos.

[Philip Rogers]

your service medical records do not show any respiratory problems in seervice or exposure to asbestos. Therefore the evidence you submit must relate to this fact."

You are going to have to prove to them that:

#1. He had respiratory problems in service.

#2. He was, in fact, exposed to asbestos.

His service medical records need to indicate that he had respiratory problems. I know you say that you have pointed it out to them, but you are going to have to make a really big point of pointing it out, again.

Have a doctor look over his SMRs and refer to the appropriate SMR and give a medical nexus to link his cancer to the SMRs.

Then, you will have to provide an occasion whereby he was in contact or close proximity to asbestos.

I disagree - I think you need to show a diagnosis of some type of lung cancer, caused by asbestos and that he was exposed to that agent during his military service. Mesothelioma may not show up for 30-50 years and you know the VA will deny anything they can. A medical opinion that his lung cancer was "as least likely as not" caused by that exposure would certainly help. jmo

[free_spirit_etc]

We MAY get that - but we have been focusing on trying to get a doctor's opinion that his cancer STARTED in the service...which has always been the MAIN focus of his claim (from his point of view)...and probably easier to "prove" than the asbestos.

But it sounds like they are trying to restrict the evidence to only addressing the secondary connection.

Free

Get a doctor to review the SMR's and say that the lung cancer is due to asbestos. Then it would be new and material.

[free_spirit_etc]

Oh..believe me I don't mind pointing that out to them AGAIN!!But it also seems like a catch 22 -- because then it is not new.....it is just material.

Free

your service medical records do not show any respiratory problems in seervice or exposure to asbestos. Therefore the evidence you submit must relate to this fact."

You are going to have to prove to them that:

#1. He had respiratory problems in service.

#2. He was, in fact, exposed to asbestos.

His service medical records need to indicate that he had respiratory problems. I know you say that you have pointed it out to them, but you are going to have to make a really big point of pointing it out, again.

Have a doctor look over his SMRs and refer to the appropriate SMR and give a medical nexus to link his cancer to the SMRs.

Then, you will have to provide an occasion whereby he was in contact or close proximity to asbestos.

[Guest jstacy]

Hi Free, Is the original decision final? Immediatly file a CUE claim. Use the information in the service record as the point of CUE. The VA ignored the information in the SMR. They were ignorant to its existant in the record, It is not based on how it was weighed, It is based on the fact that the evidence was not weighed.

Are any of the Vets family members int he Mediccal Profession, Ie Nurse, Doctor, Rad Tech? If so get them to write a statement.

File a NOD with the Decision anyway to get it to the BVA. You can CUE the decision and still file an appeal.

Do this quickly as possible. ALso call a good SSA attorney. Ask them is they have a MD they use for Lung Cases. usually they have a Network of attorneys that prepare for SSA, I believe they will do one for the VA also.

ALso do you have any Ct scans or XRAYs? If you do, DR, Bash is the best person for you. He can catch mistakes from Radiologist and make proper determinations. AN IMO cost around $2000.00 but he is the person who can tell you if it is asbestos related or not.

I hope all goes well.

Edited September 23, 2006 by jstacy (see edit history)