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).”
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.
Question
free_spirit_etc
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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