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

[Philip Rogers]

They KIND of acknowledged that electricians are exposed to asbestos - because their denial even stated "Your service medical records show you were an electrician, HOWEVER there is nothing such as an occupational survey or participation in an occuaptional health surveillance program that would indicate exposure to asbestos. " This pretty much mimics what the doctor said.

But again - the Air Force did not start such programs for asbestos until several years after he cross trained into another filed.

The VA already has two letters form my husband which indicate specific things he did as an electrician to expose him to asbestos.

Also - documented in his medical records with the Base dcotors (post service) are:

Written Notes in Chronological Record of Medical Care 10/3/2001 –

“CXR rpt seen > Upper Lobe Scarring & 3 cm Left Lung SPN

Also likely asbestos exposure as electrician 1969 – 1982

N.B. – Chart & Consult & pt. Is in Error & pt. In Non-Small Cell CA & Not Small Cell. Important Differences explained to pt. e. g. Poss. Adeno CA unk 1 ° ? “

New Patient Note 10/10/2001 – – Oncologist

“The patient’s past history is somewhat remarkable in that he worked as an electrician in the air force and was exposed to asbestos.”

Written Notes in Chronological Record of Medical Care 11/5/2003 -

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. 1st CA 2000

3. Exposure Cigs & Asbestos > 80 x’s Risk

It is odd that they disregarded all that evidence --on the basis that he wasn't involved in a surveillance program that didn't even exist at the time.

Adenocarcinoma is one of the cancers that is linked to asbestos.

We have since obtained:

4 buddy statements which state that

a. they were always doing electrical work that exposed them to asbestos

b. that no safety programs were in place at that time (screening, respiratory protection, etc.

We also have obtained:

1. A job description for Air Force electricians which states they are likely to be exposed to asbestos.

2. Documentation which shows that the air Force did not start their asbesots management programs until the mid 80s

3. A document which shows that Air Force electricians are now required to be in the respiratory protection programs.

4. Records showing the buildings which have had asbestos abatement at the last base he was on as an electrician.

5. Documents from OSHA showing that the Construction Standard for asbestos didn't start until the mid 1980's - and that the PEL levels changed significantly over time (i.e. exposure that was allowable in the 70's under the General Industry Standard (which did not include construction workers) is NOW considered to be dangerous --

I think we have enough to show exposure IF we can get them PAST looking only for evidence which we cannot provide (which is the health screenings that were not done at that time)

Free

I hope he's hired an asbestos atty, to go after the asbestos companies, also and is not just going after the VA. If not he should contact one of them for an evaluation. jmo

pr

[john999]

Free Spirit

You can ask for a personal hearing at any time in the process to the best of my knowledge. The way it is usually done is to wait for a decision and then ask for a DRO Hearing.

[vaf]

I agree with the suggestion to consult with an asbestos attorney. I lost my father to mesothelioma related to his factory job, and my mother as a result of secondary exposure, washing his clothes. This is a terrible illness that slowly suffocates its victims.

There will be expenses in the future that you cannot calculate now. An asbestos attorney can help you with this.

[john999]

Can this cancer ever be related to AO exposure?

[Guest jstacy]

It can be related to AO exposure.

As a Navy Asbestos Worker, I believe the VA erred in saying the fact that The Vet had no respitory problems in service. It is the common cop out. Asbestos has a latency period of 5 to 30 years depending on the volume of exposure inhaled. It also depends on what type of asbestos he worked with. I think this Vet has a good chance at the BVA. I am amazed the stuff the RO's conjure up.