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

[Vike17]

You are going to need an IMO to connect your husbands respitory problems from the service to his current lung cancer.

It sounds like the VA tried to apply the presumptive rule in your husbands favor at the time of thier decision but couldn't because they didn't find anything in his SMR's to warrant 'direct' service-connection. If there is respitory problems noted in his SMR's, and the VA missed it, you should have appealed the decision. Since you didn't, now you have to re-open his claim with "New and Material" evidence. This means evidence the VA was unawre of and did not have in thier possession at the time of thier decsion, and evidence that bare directly on the fact as to why it was denied. Just because the VA denied the claim on a presumptive basis doesn't mean you have to show the condition is 'presumptive,' you can submit evidence that indicate the condition is 'directly' related to his military service and the VA will re-open his claim. That means a strong IMO would be sufficient to re-open your husbands claim.

Vike 17

Edited September 23, 2006 by Vike17

[Berta]

Good advise here-

If you consider an IMO or not- be sure to get a copy of the VA's asbestos training letter whioch I posted here at hadit before.

Also- I posted the US Navy Pies List-

It shows the occupations and MOS in Navy veterans with the probability factor of their exposure due to occupation.

Their denial contained important wording:

"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."

It seems that they did not consider his SMRs??? are they listed as evidence or mentioned in the narrative at all?

Also it appears they did not consider his service occupation as significant for exposure.

They need to know exactly what he did in service and how it exposed him to asbestos.

An MOS on a DD 214 usually does not come even close to explaining what the service person did in service.

The VA training letter on asbestos is quite clear as to what a veteran needs to succeed and these claims

most often depend on an IMO as suggested here.

Example: I have an asbestos vet- hoping to hear from him on his claim soon-

He has colon cancer, diagnosed 40 years after service.

His two Navy occupations were on the VA PIES list as highly probable and probable exposure.

He never smoked nor had any occupation prior to or after service which exposed him to asbestos.

His 40 year diagnosis is consistent with the VA's own training letter on asbestos and long term results.

I sent him printout of his ship which had so much asbestos, they dumped it off coast of Iran,to send in support of his claim and

I sent him a recent printout of a recent case where a civilian got millions from asbestos causing colon cancer appearing decades after the man's exposure in his civilian occupation.

These claims must prove nexus to asbestos in service, without any other etiology or cause for the disability, and they must also prove that the specific disability is known to have been caused by asbestos.

[free_spirit_etc]

Thanks for all of your advise! We are working on it..working on it...

Free

[carlie]

Free,

Have you ever requested a DRO Review with a hearing?

If not, FYI - the DRO has to review all evidence of record - and for that you are not required to have new and material evidence to submit.

OMO,

carlie

[john999]

If SMR's existed but the VA did not have them then that is not a CUE, right or wrong. I am trying to get records from Ft. Stewart my last duty station and I have never seen them in my SMR's when I requested them previously. These have to have some bearing on either my discharge or my initial rating I think. How could 5 months of mental health records just disappear? I think they got the shredder charged up again.

[free_spirit_etc]

No. He didn't request a DRO -- but his Statement of Case said that it was a de novo review by a DRO. But it was pretty much just a repeat of what the Denial Letter stated - which was a repeat of what the C&P doctor type person (who never even saw him) stated.

And a large question I had was -- my husband's strongest premise has always been that his cancer started in the service -- but they just blew that off - and just made a decision on whether his cancer was caused by asbestos (and the C&P examiner said that there was no evidence of asbestos exposure because he didn't have any medical survellience or screenings (which the Air Force didn't start until the mid 80's --my husband was an electrician from 1970 - 1983).

AND they continue to NOT acknowledge that my husband is filing for DIRECT service connection (incurred IN service) - and now they said the new evidence HAS to relate to why he was denied in the first place.

So -if they restrict your evidence to only those matters -- he still won't get the DIRECT portion of his claim heard.

TO me - that seems to prejudice the case.

Free

Free,

Have you ever requested a DRO Review with a hearing?

If not, FYI - the DRO has to review all evidence of record - and for that you are not required to have new and material evidence to submit.

OMO,

carlie