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Not Quite A Cue Letter -- But Asking Them To Do Their Stuff


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.

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.

As this is the information requested, I will certainly send any information I can in respect to this. However, this also seems to be a significant limitation on the scope of my claim, which seems to prejudice my case.

I initially requested the VA adjudicate my claim for lung cancer based on the information I received from my doctor that based on the growth rate of my type of cancer, that my cancer would have most likely had its inception quite some time prior to my retirement from service, due to the size of my tumor when discovered in 2000.

This originally seemed to be acknowledged in the initial response to my claim from the VA, which indicated they had received my claim for lung cancer to include as secondary to asbestos exposure. However, since the initial response, all the communication from the VA has only acknowledged the secondary claim of lung cancer due to asbestos exposure, leaving my claim for direct service connection unacknowledged and unadjudicated.

Though my communication with the VA consistently reiterates the fact that I am claiming service connection for lung cancer as a direct service connection, in that it was incurred during my active service, that claim has basically been ignored.

CFR 3.303 (d) specifically addresses postservice initial diagnosis of disease – and does not limit granting direct service connection only to diseases diagnosed during service or within the presumptive period.

Additionally, granting direct service connection for lung cancer, which is diagnosed after discharge and after the expiration of the presumptive period, based on medical knowledge of cancer growth is not a unique or unusual precedent, as many of the BVA decisions indicate.

§3.303(d) clearly states “Postservice initial diagnosis of disease. 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.

Furthermore, the VBA manual, in Section B (3) (a) (Direct Service Connection Under 38 CFR 3.303(d) ) 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.”

The same section further states “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.”

Section B (3) (e) (Presumptive Service Connection for Chronic and Tropical Diseases) in the VBA manual states “Note: According to 38 CFR 3.303(d), ROs should not routinely deny service connection for disabilities first diagnosed after service merely because the veteran is not entitled to presumptive service connection, or claimed disability is not subject to a presumption of service connection.

I am requesting that my claim for direct service connection for lung cancer, filed in November 2001, be acknowledged and adjudicated. To continue to limit the scope of the VA’s development and decisions, or limit the scope of evidence I am to submit to be considered in support of my claim, to the secondary claim related to asbestos exposure alone, continues to deny me due process of having every equitable consideration of having my claim for direct service connection considered and adjudicated.

The recent letter indicates a list of evidence you have received. Some of the evidence in the package submitted to you July 31, 2006 is not listed. This evidence includes several medical reports and treatises.

The treatise evidence submitted is significant in this case, as it substantiates the note from Dr. xxx (submitted November 2001) indicating the growth rate (doubling time) of pulmonary adenocarcinoma, the number of doublings required for a tumor to reach different sizes, and the approximate time from inception to a 3 cm tumor (the size of my cancer when detected in 2000). The doubling time is further substantiated by the statement from my oncologist, xxxx, dated June 27, 2006.

“The Court has held that, in determining whether a medical article or treatise evidence provides a nexus between a current disability and active service, that such evidence, standing alone, is sufficient if it discusses generic relationships with a degree of certainty such that, under the facts of the specific case, there is at least plausible causality based upon objective facts rather than on an

unsubstantiated lay medical opinion. See Wallin v. West, 11 Vet. App. 509 (1998). …”

“… Further, the Board notes that no medical or scientific evidence is on file which refutes the medical article evidence noted above. The Court has long maintained that the Board cannot reject medical evidence, or reach an opposite conclusion, based solely on its own unsubstantiated opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).”

- From:Citation Nr: 0113204 Decision Date: 05/09/01 Archive Date: 05/15/01 DOCKET NO. 00-21 873 (http://www.va.gov/vetapp01/files02/0113204.txt)

Due to the importance of this evidence, I want to assure that all of the evidence submitted is of record. I realize a list of the evidence in its entirety is quite lengthy. However, in order to completely substantiate my claim, and avoid remands, it was necessary to submit a comprehensive package of evidence. A list of evidence submitted on July 31, 2006, but not included in the September 19, 2006 letter from the VA is attached.

Thank you,

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It wasn't based on the sinus infections. It was based on the doctor telling us that a 3 cm tumor of that kind fo cancer would have taken from 12 to 17 years to reach that size --and so a 3cm tumor (in 2000) couldn't have started after 1998.

Thanks for your help.

But right now I just really want to throw in the towel --cry for awhile -- and never hear the word RO again.

I'm tired.

Free

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But right now I just really want to throw in the towel --cry for awhile -- and never hear the word RO again.

Free,

That is exactly what they want you to do. Do as I have. Cry it out and then come back stronger.

There is no way that a cancer tumor could have grown to the size of your husbands in two years.

He had to have had it in service.

You know that and I know that , now we have to figure out, how to make the Va know it.

As far as I am concerned, the R. O is not worth a toot!

I may never win a dime, but trully the BVA and the AMC have convinced me that they are at least reading the medical records. I cannot say the same for the R. O.

Trust me hang in and keep going!

Josephine

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Thank you Josephine. I really needed to hear something encouraging right now.... though the crying it out bit will probably help too.

I remember gambling once -- when I just kept winning a little and losing a little - back and forth. And finally I thought -- Gosh! I wish i would just go ahead and lose so I can go home and get some rest.

That's kind of what I was feeling like -- that even if we lose -- at least it will be over - and I can get some rest.

It's the trying to win that is wearing me down.

I was hoping that I had at least something significant that still could use some polishing.

But I don't know if I have it in me to start over.

I don't know. Maybe I am just tired.

My best wished to you with your claim. I will keep you in my thoughts and prayers.

Free

Free,

That is exactly what they want you to do. Do as I have. Cry it out and then come back stronger.

There is no way that a cancer tumor could have grown to the size of your husbands in two years.

He had to have had it in service.

You know that and I know that , now we have to figure out, how to make the Va know it.

As far as I am concerned, the R. O is not worth a toot!

I may never win a dime, but trully the BVA and the AMC have convinced me that they are at least reading the medical records. I cannot say the same for the R. O.

Trust me hang in and keep going!

Josephine

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It's the trying to win that is wearing me down.

Free,

Turn in what you have and make them read it. I just think the Va is a place where the employees have no common sense and refuse to use the terms of logic.

It is so difficult when you can see in right in front of your face and no one else can.

I turned in what I had to say and have fought with ever fiber in me to make someone read what I was saying and to believe what I have been saying.

My dad passed on with lung cancer and so did my sister. We never saw the signs, but then when we looked back, we saw things like more than usual colds, coughing, bronchitis. For my sister, she was always so slim and trim, that we didn't notice, that she no longer cared for her flower garden and she quit cooking like she did. She lived only two months after the doctors located it, but I do remember the bronchitis the years before. She never liked to go to the doctor and it did cost her her life.

I believe that you can go in there and fight. Say what you think. I believe that some of the employees are human and I am feel at the AMC, I have finally met some.

Maybe that is where your case needs to be.

You said that you were sick of the R.O and so was I.

Can you just appeal and go on to the BVA?

You just might be surprised.

Soemtimes it takes another woman to understand another.

I will be glad to help you in any way that I can.

The Va knows that they will have to kill me to get me to shut up.

Take it easy and turn in what you have.

Always,

Joephine

Edited by Josephine (see edit history)
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Free Spirit,

The VA is not bound by any BVA decisions, only decisions of the Court of Veteran Appeals are considered law. While it does not hurt to cite BVA case history, it would be better to find 5-6-or even 8 cases that appear equal to yours and cite them.

I knw the VA is not bound by the BVA decisions. I couldn't find any decisions granting service connection based on growth rates in the CVA. I thought this might be because they don't try the facts of the case. I couldn't even find any cases that MENTIONED the growth rates. So the BVA is the best I could come up with. And actually I was given hope when I typped in doubling time and cancer and MOST of the cases I pulled up at the BVA site atually GRANTED service connection. Again, I know they aren't bound by that - but I was hoping if I at least pointed it out that the RO might realize the doubling time argument COULD BE a valid one.

How does this prejudice you case? First it does not make sense to duplicate any information already submitted or reviewed by the VA, they need new medical evidence not yet reviewed in order to grant the claim and the denial states this in so many words.

We were mostly thnking it prejudices the case if the VA fails to even consider the evidence that the cancer could have been incurred in-service and will only grant service connection if we prove asbestos exposure.

You also talk about direct service connection vrs secondary conditions, The va does not really care what caused the lung cancer, as long as it can be medically proven that it was a medical problem that started on active duty with a nexus into civillian life service connection will be granted.

The direct service connection is not addressing cause -- it is addressing the fatc that evidence shows the cancer did not grow to 3 cm in two years. We were hoping they would at least consider the evidence and address it -- but if they don't consider the evidence -- they just keep pulling faarther and farther away from the evidence we DO have.

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He was an electrician from 1970 to 1983. Then he was First Seargent from 1983 - 1998.

In 1998 - he went to school -- and started teaching college part time a few years ago. He didn't work last year. He is going to try to teach one class this Spring. He really enjoys teaching -- and says it keeps him going -- so I hope that can work out.

We have obtained some buddy statements from former coworkers (four of them) that support the fact that they ALL did work that involved disturbing asbestos -- and that there were NO safety measures in place. One of the buddies said that after my husband left the field they started getting training in asbestos and found out that many of the buildings they had been working in had alot of asbestos in them.

They also started the respirator programs --wet methods - etc -- in the late 80's.

No significant pre or post service exposure.

We also got a document through the Freedom of Information act that shows that asbesots is present or has been abated in 82 of the buildings on the base where he last worked as an electrician -- and ALL the housing there. The report --also includes an initial assessment of 38 buildings when the base first started their AMPs --and it stated that several of the buildings had significant problems (and recommended that some of them be closed off and labeled as a hazard area until the asbestos problem could be handled.

The report also lists a few of the buildings that my husband has work reports for. For instance- he has some letters thanking him for rewiring certain buildings... Those buildings match the list of buildings that do have or have had asbestos.

I THINK we have enough evidence to show probable exposure. But if they don't move past their thinking that he HAS to have occupational screening records --they won't look at the other stuff. That is why we spent so much time finding evidence that supports that those programs didn't even exist.

We can't even go for the nexus -until we get them to concede probable exposure.

Free

Free

Free, what was your husbands Occupation in service?

What did he do after he got out?

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Josephine,

Thanks again. You give me hope. Having no hope is a sucky way to feel. I know we don't have an air tight case, or the strongest case in the world -- but I am hoping that some of our evidence will count for something.

We can't appeal until we are denied (IF we are)... and yes, I have been trying to design the case so it is ready for appeal -- that all the issues are brought forward.

The letter the VA wrote to our senator said that a supervisor will be handling the claim so they can expedite it --due to his terminal illness.

I don't know if this is a good thing or a bad thing... but I was thinking a supervisor might do more than just look at the first page --so we might stand a chance at the RO level.

But again, that is just being hopeful.

I tend to think like you with all the resp. problems and cancer. It does seem like breathing in all that dust and asbestos could really cause some sinus / bronch problems.. but I haven't really found any medical evidence to support that --so I didn't bring it up. I found a couple articles --but not a real strong connection like my other stuff -where LOTS reliable sources agree.

I think by the time they started realizing the danger for real --they started protecting people from all the dust --so lots of the early stuff couldn't really be studied...because to study the early effect would mean you have to expose people to it to see.

And I guess I am stubborn -- even if we lose I would rather feel like I lost because THEY were wrong - not because I didn't have a case in the first place.

Bless you sister Josephine B)

Free

Free,

Turn in what you have and make them read it. I just think the Va is a place where the employees have no common sense and refuse to use the terms of logic.

It is so difficult when you can see in right in front of your face and no one else can.

I turned in what I had to say and have fought with ever fiber in me to make someone read what I was saying and to believe what I have been saying.

My dad passed on with lung cancer and so did my sister. We never saw the signs, but then when we looked back, we saw things like more than usual colds, coughing, bronchitis. For my sister, she was always so slim and trim, that we didn't notice, that she no longer cared for her flower garden and she quit cooking like she did. She lived only two months after the doctors located it, but I do remember the bronchitis the years before. She never liked to go to the doctor and it did cost her her life.

I believe that you can go in there and fight. Say what you think. I believe that some of the employees are human and I am feel at the AMC, I have finally met some.

Maybe that is where your case needs to be.

You said that you were sick of the R.O and so was I.

Can you just appeal and go on to the BVA?

You just might be surprised.

Soemtimes it takes another woman to understand another.

I will be glad to help you in any way that I can.

The Va knows that they will have to kill me to get me to shut up.

Take it easy and turn in what you have.

Always,

Joephine

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John's question is critical to an asbestos claim.

How did his MOS inservice expose him to asbestos-it does sound like you have some good evidence-that would provide a good nexus-

but also the second part of Joh's question is really important too-

did he have any occupation whatsoever after service that also exposed him to asbestos-

Also in claims like this- the VA will state that if the veteran is a smoker, this could be the etiology of the cancer.

Asbestos causes only certain types of cancers.It is not unusual for some asbestos cancers to be diagnosed decades after exposure, but asbestos is related to only certain types.

I have colon cancer vet-Navy-he had two inservice shipboard occupations that exposed him to asbestos in service (per VA PIES list of asbestos exposure in Navy veterans- ),never smoked, and never was exposed to asbestos after service by any other occupation.

We supported this claim with considerable linkage of asbestos to his MOS-some of it came from the VA web site-and also we sent a printout I found of a recent lawsuit settlement involving millions to a civilian whose had the same type of colon cancer and it was determined to have come from his occupational asbestos exposure.Not a vet -but it supported our argument that colon cancer can be caused by asbestos and this vet has no other know etiology but for his ship duties involving asbestos to cause the cancer-prior to or after service.

I also found that the ship he served on was dumped off shore near Iran- for salvage- too expensive for the US to remove the asbestos it contained.

Last I heard this vet was trying to obtain an IMO -as the claim was taking so long and he developed additional serious problems due to the colon cancer.I suggested that when he gets an IMO the IMO doctor should certainly consider whether these additional disabilties-additional cancer- are more than likely due to metasizing of the colon cancer- therefore they would have to SC this other problem too.

I think these asbestos claims often need a persuasive IMO.

Especially if -but for inservice occupation involving asbestos-there are other factors that VA could deny on.

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Thansk for the info Berta. I am making some changes in the letters based on the feedback - rethinking a little bit - but not feeling as hopeless.

The only thing my hsuband did between the service and his cancer was went to college. But also - as it was only two years from retirement to diagnosis -- the post service stuff wouldn't matter as much.

Pulmonary adenocarcinoma has been linked to asbestos. It doesn't have a strong as link anymore. -- as some research is not showing as strong as connection -- but the ASTR sites are still giving it a strong connection. Basically -- adenocarcinoma HAS been linked to asbestos -- but any kind of lung cancer can be caused by asbestos. Interesting to note though, that adenocarcinoma is the most common cancer in nonsmokers. So the smoking connection is a bit weaker.

We actually have been developing quite a bit of evidence -- but I was developing a letter to hit our main points and let them know that the package of evidence will follow soon. Don't want to send everything in at random --want to organize it. So the letters weren't our evidence. They were just letters.

Free

John's question is critical to an asbestos claim.

How did his MOS inservice expose him to asbestos-it does sound like you have some good evidence-that would provide a good nexus-

but also the second part of Joh's question is really important too-

did he have any occupation whatsoever after service that also exposed him to asbestos-

Also in claims like this- the VA will state that if the veteran is a smoker, this could be the etiology of the cancer.

Asbestos causes only certain types of cancers.It is not unusual for some asbestos cancers to be diagnosed decades after exposure, but asbestos is related to only certain types.

I have colon cancer vet-Navy-he had two inservice shipboard occupations that exposed him to asbestos in service (per VA PIES list of asbestos exposure in Navy veterans- ),never smoked, and never was exposed to asbestos after service by any other occupation.

We supported this claim with considerable linkage of asbestos to his MOS-some of it came from the VA web site-and also we sent a printout I found of a recent lawsuit settlement involving millions to a civilian whose had the same type of colon cancer and it was determined to have come from his occupational asbestos exposure.Not a vet -but it supported our argument that colon cancer can be caused by asbestos and this vet has no other know etiology but for his ship duties involving asbestos to cause the cancer-prior to or after service.

I also found that the ship he served on was dumped off shore near Iran- for salvage- too expensive for the US to remove the asbestos it contained.

Last I heard this vet was trying to obtain an IMO -as the claim was taking so long and he developed additional serious problems due to the colon cancer.I suggested that when he gets an IMO the IMO doctor should certainly consider whether these additional disabilties-additional cancer- are more than likely due to metasizing of the colon cancer- therefore they would have to SC this other problem too.

I think these asbestos claims often need a persuasive IMO.

Especially if -but for inservice occupation involving asbestos-there are other factors that VA could deny on.

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M21 -1MR info on new & matererial

5. New and Material Evidence

Introduction This topic contains information on new and material evidence, including

• reopening denied claims

• the definition of the term new evidence

• cumulative evidence

• the definition of the term material evidence

• requirement for reopening a claim

• handling submitted evidence, and

• notifying the claimant that the reopened claim remains denied

Change Date December 13, 2005

a. Reopening Denied Claims Once a claim has been finally denied, it cannot be reopened unless new and material evidence is received.

Reference: For more information on new and material evidence, see

• 38 U.S.C. 5108, and

• 38 CFR 3.156.

b. Definition: New Evidence New evidence is evidence that has not previously been considered. New and material evidence must

• not be cumulative of evidence of record at the time of the last final denial, and

• prove the merits of the claim relating to each essential element that was a specified basis for the last final denial.

New evidence may be in the form of either written or sworn testimony.

Reference: For more information on what is considered new evidence, see

• Cuevas v. Principi, 3 Vet. App. 542 (1992), and

• Barnett v. Brown, 8 Vet. App. 542 (1995).

Continued on next page

5. New and Material Evidence, Continued

c. Cumulative Evidence Evidence is merely cumulative and is not to be considered new evidence if it

• reinforces a previously well-established point

• provides additional details to support previous statements, or

• rehashes previously submitted statements.

d. Definition: Material Evidence Material evidence is evidence that by itself, or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.

To be considered material, evidence must be of sufficient significance so that there is a reasonable possibility that the new evidence, when considered in light of all the evidence, both old and new, would help prove the claim.

Newly submitted or secured evidence must be material to the reasons for the last final denial.

Note: “Last final denial” includes denials on any basis, such as lack of new and material evidence. To be final, over one year must have elapsed since the claimant was notified of the decision to disallow the claim.

Reference: For more information on material evidence, see Masors v. Derwinski, 2 Vet. App. 181 (1992).

e. Requirement for Reopening a Claim A previously denied claim is not considered reopened unless the evidence submitted is both new and material.

Examples:

• An inaccurate history contained in subsequently received evidence does not constitute new and material evidence to reopen a claim for service connection that was previously denied.

• An assertion about the cause of a medical condition made by a layman is not sufficient to reopen a previously disallowed claim.

References: For more information on

• essential elements of a claim, see Evans v. Brown, 9 Vet. App. 273 (1996)

• inaccurate history as evidence, see Reonal v. Brown, 5 Vet. App. 458 (1993), and

• medical assertions by laymen, see Allday v. Brown, 7 Vet. App. 517 (1995).

Continued on next page

5. New and Material Evidence, Continued

f. Handling Submitted Evidence Use the table below to determine how to handle submitted evidence.

If it is determined that the evidence submitted by, or on behalf of, the claimant is … Then …

new and material • reopen the claim, and

• review all the evidence of record before making another decision.

not both new and material prepare a decision that

• confirms the previous decision, and

• indicates that the claim is not considered to have been successfully reopened.

Important: The decision must explain the reason for the continued denial and why the submitted evidence is not considered to be new and material.

g. Notifying the Claimant That the Reopened Claim Remains Denied If after review of all the evidence, the claim remains denied, provide the following information to the claimant:

• exactly what evidence was reviewed

• the reasons for the continued denial, and

• a statement to the effect that the evidence submitted was found to be new and material.

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