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Letter To The Va


free_spirit_etc

Question

This letter is in response to the letter (xxx) I received dated September 19, 2006.

I am working on obtaining additional evidence to submit in regard to this claim as per your request.

This has been complicated by not receiving records I have requested from the VA. I attempted to obtain medical records from the National Records Center in June 2006. I was notified that the Records Center cannot provide me with copies of those records, as they are in the possession of the VA. On August 10, 2006 I filed a VA form 3288, requesting copies of my service medical records (including my discharge physical), and as of this date I have not received such records requested by the VA.

The letter also indicates that in order to be material, the additional evidence must pertain to the reason my claim was previously denied – and in that my claim was previously denied because my service medical records do not show any respiratory problems in service or exposure to asbestos – that evidence I submit must relate to this fact.

Evidence supporting my claim includes:

RESPIRATORY PROBLEMS

The evidence of respiratory problems in service is not new (as it is in my service medical records, which are purportedly in possession of the VA), but it should qualify as material in that it relates to the reason I was previously denied.

These records would include the 14 notations in my service medical records ranging from October 9, 1970 – June 24 1996 of both upper and lower respiratory problems in service. (Atch 7e – 1 through 7e – 13, inclusive – in the package submitted to you July 31, 2006)

Notations in my service medical records which indicate respiratory problems / treatment in service include:

October 9, 1970 – URI x 1 Day

May 9, 1971 – Emergency Appointment URI - Chest Cold – Congestion. Runny Nose

May 10, 1971 - Strep Throat

December 18, 1973 – Emergency Room Visit - Pharyngitis, Sinus congestion, Sore Throat, Nonprductive cough

July 1974 – Emergency Room Visit – Flu - Sore throat, headache, pharynx – slight infection without exudates

January 12 1982 – URI - c/o sinusitis– cough 3 weeks – sore throat – nasal congestion

September 3, 1982 – URI Sinus vs. Bronchitis - Sinus problems x 2 days -throat drainage – throat mildly infected – runny stuffy nose

January 17, 1985– Emergency Care and Treatment – URI – Coughing fit lasting 45 minutes today. History of chest cold 1 month ago.

January 28, 1985 – Chronic bronchitis -c/o cough – seen in ER Jan 17 – not improving – periodic lightheadedness – white phlegm

July 1, 1985 – URI – coughing fits

January 31, 1986 Periodic Exam – in the section for notes which instructs to describe every abnormality in detail. Lungs / Chest 28 PFT FVC 94.4 FEV-1 96.8 FEV-1 / FVC 83.8

April 6, 1987 cough – rhinorrhea - nasal congestion – post nasal drip – nose congested – pharynx red

December 8, 1993 – Strep Infection – c/o cough, chills, swollen glands x 2 days

June 24, 1996 Rib Pain – Left Rib – pain for 6 months from coughing with bronchitis had a bout of bronchitis with much coughing in Dec 95 – it caused him to develop a steady left sided rib pain intercostally near the costochonral junction - over the past six months has improved a lot and is intermittent but pt is concerned since this left rib ache has not completely gone away yet.

I am not certain what other evidence I could submit to substantiate the fact that my service medical records show respiratory problems in service – other than to continue to point out that the records do, indeed, indicate both respiratory problems and treatment in service.

There may be additional service medical records which indicate respiratory problems which are not in my possession. As stated previously, I have been unable to obtain such records from the VA as of this date. As these records have not been provided to me, I request that the VA look over such records to determine if there is additional evidence of respiratory problems in the service which have been overlooked.

I also want to point out that the RO and DRO may have reached the decision that my service medical records do not show any respiratory problems in service by misinterpreting the VA examiner’s report of March 19, 2002, as well as relying on their misinterpretation of the report, rather than actually reviewing the medical records.

The examiner’s report stated “His discharge physical at the time of service did not indicate any sign of any respiratory problems.” However, the February denial states “your service medical records do not show any respiratory problems in service.” The August 2004 Statement of Case states “The examiner could not find any significant exposure to asbestos or respiratory problem or treatment in service.” As I have consistently been pointing out – my service medical records do, indeed, show respiratory problems and treatment throughout my service career. I request that the VA review my service medical records with respect to this issue prior to making another determination that my service medical records do not show any respiratory problems or treatment.

ASBESTOS EXPOSURE

Evidence of Exposure:

I have previously submitted:

1. My own statements which articulate both general and specific work duties I performed as an electrician in the Air Force from 1970 – 1983 which exposed me to asbestos.

2. Copies of work records / performance reports which supported my own statements as to the types of work I performed.

3. A handwritten note which from my treating pulmonologist at xxx Air Force Base which indicates my increased risk from smoking alone to be 10 times, and my increased risk from the synergetic effect of smoking AND asbestos exposure to be 80 times, the normal risk of developing lung cancer.

4. My medical records that include:

Documentation in the physicians notes which include:

Written Notes in Chronological Record of Medical Care 10/3/2001 – Dr. xxx(In Medical Records from xxx Air Force Base) states:

“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 – 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.”

Additionally, my medical records show a pathology proven diagnosis of Interstitial Fibrosis (diagnosed in 2000).

I am obtaining additional evidence to submit in respect to my asbestos exposure. However, one of the hardest hurdles to overcome is the VA’s reliance on occupational medical surveillance / industrial hygiene programs in order to prove exposure.

Finding the evidence to substantiate that the lack of such records reflects the fact that such programs were not in existence at the time I was an electrician has been a time consuming process. However, it is an important part of the development of my claim for two reasons:

1. If the VA continues to deny my claim based on the lack of having records from a program that the Air Force did not implement until several years after I no longer worked as an electrician prejudices my claim – in that I cannot provide evidence which does not exist due to the fact that Air Force did not even keep such records.

2. The lack of such records, and thus the occupational safety programs for asbestos exposure, is an important part of my claim. Those very safety programs which were NOT implemented until AFTER I left the electrician field would have included occupational screening. And they would have included many other important factors such as:

1. OSHA training

2. Respiratory Protection

3. Safer work practices

4. Established PEL’s (Permissible Exposure Levels)

In other words, the conditions I worked in as an electrician in the 1970’s to mid-80’s was LATER determined to be a SIGNIFICANT RISK when OSHA implemented the Construction Standard in 1986 (3 years after I had cross-trained into another field) and when the Air Force began developing their Asbestos Management Programs in the late 80’s. However, I spent 13 years working in such conditions with no safety measures being utilized.

In all fairness to my claim, I need to be able to fully develop this evidence, rather than let my claim be denied again based on the lack of occupational screening records. I trust that when the VA is made aware of the fact that such programs were not in existence, they will not continue to disregard the evidence in my record that substantiates exposure just because there is a lack of a record that wasn’t even kept at that time.

I am in the process of getting my final evidence together and plan to have it submitted within the next two weeks.

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Thanks Rick!

I certainly agree that none of the respiratory problems in service seem connected to lung cancer. The only reason I am listing them is that the letter from the VA stated that in order to be material, the additional evidence must pertain to the reason my claim was previously denied – and in that my claim was previously denied because my service medical records do not show any respiratory problems in service or exposure to asbestos – that evidence I submit must relate to this fact.

So it seems like kind of a catch 22.

None of the treatment in service proves the claim -- yet that is what they ASKED for.

So I was hoping if we give them that in the letter - we can move on to the better evidence.

My husband's lung cancer was detected 2 years after retirement when he was screened to be a bone marrow donor. Interstitial Fibrosis was discovered at the same time. But he wasn't having any symptoms at that time, per se.

We are working on getting all the evidence we have together. But as we are running up against the 60 days -- I wanted to submit something. I hope to have all the evidence compiled over my Thnaksgiving break.

One of the basic things I wanted to point out in the letter is that they ignored the evidence that IS in his record concerning exposure because he doesn't have any occupational health screenings --and they weren't even doing them at that time.

Actually his My DLCO was 51% in 2001 - and though I can't find a record of what it was BEFORE his surgery --the doctor indicated it was BETTER in 2001 than it was in 2000. He also had decreased FVC (73% predicted) and decreased FEV1 (69% predicted) The bronchialdialtor made no difference.

I am not quite clear on how the doctor's remarks on asbestos relative risk of asbestos exposure would be meaningless. If your risk from smoking alone is 10% --and your risk from smoking and asbestos is 80% --the normal risk -- doesn't it seem like the asbestos increased your risk...that it would be hard to say it did not factor in?

We have support for the doctor's remark from an Army Medical site (government).

So what do we do about the Resp. problems in service since they are the ones that say we have to show that?

Do we just say the records show resp. problems - but they are not connected to his cancer?

I actually thought of adding in a statement regarding this -- but wondered if I should.

Do we submit the list of documented problems and let THEM tell us they are not related?

Or do we just ignore the request and send what WE have?

Free

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I really hope this case isn't as hopeless as it sounds now.

Free Spirit,

Yes I see your point, but if the medical evidence does not relate to a lung cancer then it does not support the claim, therefor it is just a paper drill of no use.

The major use of that part was that they said his claim was denied because his SMRS showed no resp problems and treatment. So I thought the paper drill would be if we showed them what they asked for - we could also submit other evidence. Maybe it would be better for us to preface the list with. "due to the latency period of asbesots related illness and the asymptomatic nature of cancer until it is in it's later stages - respiratory problems in the service medical record may have no bearing on my subsequent development of cancer. However, I am including a list of such problems / treatment as per your request.

"they ignored the evidence that IS in his record concerning exposure because he doesn't have any "occupational health screenings --and they weren't even doing them at that time."

This is a mute point, becasue as you said there is no evidence of occupational health screenings, you will have to prove the case on what evidence exist not what should exist.

Oh I agree that the case should be based on the evidence that does exist. They really complicated it by ignoring the evidence that does exist (statements of work duties, documentation in post service medical records, a diagnosis of Interstitial Fibrosis) because there were no occupational screenings.

So we found evidence that the OSHA standards did not apply to the construction industry before 1986 --and the Air Orce did not start their Asbestos Management programs until 1988 to rebut THEIR presumption that there SHOULD be occuaptional screening records if he was exposed to assbesots. Because until we can get them to acknowledge that ther wouldn't be any such screening records they won't look at the other evidence.

In this case it is meaningless because it does not corrolate to any medical evidence of record. It is nothing more than a basic statement which might apply to any case of Lung cancer. With out stating with certainity that the lung cancer is a result of a specific exposure then it is meaning less. The IMO must state that there is a 50% chance or that it is more likely than not that his medical condition was incurred on active duty, based on review of active duty medical records. The doctor cannot make such a statement because as you have pointed out there is no active duty medical evidence to support this claim.

We have been having trouble getting an IMO -- but were hoping that the fact that the statements about the 80 times risk of cancer would hold a little more weight as they are documented in the physicians notes. Why would the doctor document this in his notes several times over several years if he did not think that the asbestos exposure had some bearing on the cancer?

I agree that our evidence could be stronger and our case is not perfect. We are trying to build the strongest case possible with what we have.

again best of luck.

Thank you

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