Further evidence for being declined by VA

[MCCFR97]

I'm putting together further evidence to show service connection for disability for multiple myeloma based on contact with TCE's and Benzene on the flight line 91-97. 

Min addition to photos, lay witness statements and a nexus letter from my oncologist, can I also submit a previous des soon by a VA judge advocate dated 2012? In that decsision the judge found in favor of a Marine who worked on the flight line in 91-92 at El Toro. He was in NBC and had contact with benzene also and had multiple myeloma. This is basically the same as my claim only a different MOS.

thanks.

[Berta]

Personally I think the 21-4138 is always a good idea for buddy statements, because the VA is familiar with that form. ...a copy of a letter from a buddy could easily be overlooked by the RO.

You gave Excellent advice here as to Buddy statements! The attached DD 214 is a great idea!

Others will  reply if buddy statements helped them at a DRO review. BVA has plenty of cases in which buddy statements helped.

But plenty too that didn't. And anyone reading those decisions at the BVA can understand why they didn't help.

If your oncologist is a private doc, maybe he would be quite willing to provide an IMO for you. Maybe at low fee, or even at no cost.

The IMO criteria is above but all he has to focus on is that ,in his opinion, there is no other etiology for your cancer, but for the exposure to benzene and/or TCE. in service and he could support that with any good  internet printout , medical study or treatise, as his rationale and experience as an

oncologist.

Did your C & P get done by a real oncologist for the VA?

If not ,that fact - an opinion from an expert in cancer,  would really give your IMO more weight.

Buddy statements don't have to be notarized but most banks we deal with ,will do that for free.

Buddy statements certainly have value ,if they are done properly, as you advised.

Buddys can be found but it can take time.The internet has made that easier than ever these days.

Hadit has made it easier too, as this shows:

My daughter, a vet,  helped some vets years ago because she translated a Vietnamese document one of them found on the ground  in Vietnam decades ago.

It contained the names and SSA numbers of about 7 vets ,all who were involved in the combat stressor event and the vet who contacted me, via hadit years ago, said they thought it was a VC hit list. He kept it but it always scared him.

This vet had contacted, long after Vietnam, all of these vets and found one had died. The others gave him buddy statements.

And one gave him a copy of his PTSD award letter ,attached to the statement, for PTSD directly due to the same stressor.

Long story, they all got more decorations ( DD 215s) and the vet who sent me the document  for my daughter to translate, got the Distinguished Flying Cross.

The document they found was from some high level Vietnamese General , on valid letterhead, commending them all by name, and SSA numbers, for saving many lives that day, with details at to what each veteran had done, after a horrific battle.

And my daughter was the top Vietnamese linguist in our country at that time and also provided VA with ample proof of her credentials.

The needle in haystacks can be found.

I won a FTCA and 1151 wrongful death case without any IMO at all. 1997-1998

But that was because the FTCA case was handled by VA lawyers at OGC (who can read) and my medical evidence was impeccable.

Yet when I re opened my claim in 2003 I got IMOs for that (one was a freeby, the other 2 were 4 thousand bucks.

The DRO told my former rep that she could not read the IMOs, he handed to her so he said, to get them into the record.They had denied without even considering them. And this was at my second DRO review.These days I would have fought this differently but I knew the BVA would award anyhow, and they did. The BVA can read.

VA is a different VA now than in those days. They want a strong medical nexus to justify awards in cases like yours.

The Benefit of Doubt Doctrine weighs the evidence for and against and if equal in value, the vet should succeed.

But the VA owns the scale and will kick Blind Justice in the knee to throw the scale off, if they can get away with it..

 

Have you posted the actual C & P results here yet?

Did you even get a VA C & P yet?

 

 

 

 

 

Edited March 5, 2016 by Berta

[MCCFR97]

I have not had a C&P, read some people with Cancer have them and others don't. The ones that did see a VA Dr for cancer, almost all of them (ok 3) said it was not even an oncologist.

IMO, yes, I have an IMO, I did not have to buy it or go to another Dr.

My treating oncologist (here in San Diego UCSD) is one of only a few MM specialist here in San Diego County. She is actually a professor and teaches residents through their field training. Come to find out, through research and checking to see how good the oncologist Dr's are at the VA, I found out they actually intern at UCSD and are colleges of my Dr. 

My Dr has never written a IMO before and has no clue what a nexus letter is. After explaining to her I wasn't trying to say something her career would hate. I showed her all my evidence I was putting together to turn in as N&M, this include pictures of my direct contact with the chemicals I'm claiming caused cancer, buddy statements, my MOS job description and some EPA reports confirming officially these chemicals were removed from the base in 2000 during an environmental IG (essentially). That's all I had for her to look at for me personally, she knows all the science of MM it's her specialty, it was showing her personally what tied me as an individual to the hazards and the claim. 

The first IMO was ok, it had she had been treating me and DX'd me '14 and after speaking with me about my job in he marine corps, she concludes that it is "as likely as not" excessive contact with Benzene, TCE's and other environmental hazards caused my cancer and it was on UCSD letter head, I let my mentor read it and he told me it was good but it was light on my Dr's Credentials. He told me this is my lynch pin, my strongest evidence, I want to crush whatever medical opinion they may get later and with a better specialist.

easy enough, I write back to my Dr, explained that the VA wanted to know how bitchin she was, they are issuing she is an ER doctor (I love messing with her). She basically kept the whole the body of the letter since it was good and with VA format. She added all her education and awards on the side in the margins (Harvard Medicine, residency at Taft, oncologist of the year bedside care) you know I love me stuff. 

At the bottom she added a paragraph stating she came to her conclusion after reading witness statements, seeing pictures, referencing an EPA report, an a World Health Organization article that basically says how nasty Benzene is.  

Common questions for me? "She didn't put in what she also reference X-rays or blood work...not exactly, we know from UCSD has a signed receipt that 189 pages of treatment records were sent to the VA. I don't think I can close gaps in this IMO any better than I can.

EVERYONE ask me if I have my CFILE yet, No, Gastone thinks I can walk in Mon-Friday and request it, so I will try that first. Second question is, did I get my SMR, well, no. This is not a injury that's documented so nothing will be in them for this cancer.

right now it's just strengthening my N&M for the DRO. Many on here say I'm probably gonna essentially get denied at the DRO (including the ever so helpful DAV rep). This may be so, I may denied but I want to have a claim so good, 38CFR would maybe kick in. 

Ok, I guess I'm reformatting lay statements today. I think they will be important because they (the VA won't really have anything else) I'm sure this is when a C&P would come up....

thanks Berta.....I'm gonna just keep all this on this thread, i have a bad track record of saying stupid stuff and when I write long sentences I forget who or what I'm writing sometimes, curse you TBI.

I'm gonna start with 4138s today because I know I just have to cut paste the statement in there, then they can sign it and send it back via email. 

After that as time goes I will work in the SA, it's just labor intensive, they are both far away, and I feel bad if I keep telling my buddy's to go out of their way for shot I keep forgetting.

[FormerMember]

On 1/20/2016 at 7:34 PM, armyrob said:

Scott, I should also add here - because this gets in to worm holes.. Not ALL CAVC decisions are precedents. A CAVC decision is only a precedent when a full bench (I believe the legal term is en blanc) issues a decision. Most cases at the CAVC, something like 98% are decided by a single judge, and those decisions are not precedent setting decisions. Something like 2% of CAVC decisions are made by chambers (basically a panel of three justices). This is why I said it's typically best to look for citations made by the BVA or CAVC where they cite other precedents. 

I have no idea why so many CAVC cases are decided by a single justice, perhaps to spread them out to decide claims. It's a hot topic.

Citing other decisions made by CAVC (when it was a single justice) will rarely hold up as a precedent. Not to make this even more confusing, I just didn't want to allure that ALL CAVC decisions were precedents. Hope that makes sense.

Not quite on target. En banc decisions are the Court of Vet Appeals sitting as a whole of 9. Panel decisions  are what the gentleman is looking for. They consist of three Judges and constitute a precedential decision. Single Judge memorandums (only published electronically) are decided with a single judge because they do not cut any new legal ground. As such, the Court can decide far more appeals that have no matters that have not been adjudicated in the first instance already. En banc decisions are for earth-shattering appeals with far-reaching consequences for us Vets. BVA decisions will only cite to en banc or panel decisions. On occasion, Vets filing pro se have cited single-judge decisions that mirror their own. They have had spotty success doing it.

Here's an interesting article about it attached below. We may live to see the day when we are given precedential single- judge decisions if this VBMS disaster at the BVA creates an interminable backlog that spills over into the CAVC. 

 

Discussion about single judge rulings vs panel.pdf

[Berta]

Great on the IMO you have....the C & P doc would have to opine the cancer was caused by some other post service etiology ,with some BS on that, if they don't agree with the IMO ....your docs credentials should definitely outweigh theirs.

I think the HBP 1151 C & P they did last year for one of my claims was done by the guy who fills their water cooler paper cup dispensers at my VARO.

He didn't seem to have clue medically and my IMO came from VA Central top cardiologist, in 1997.

Was the TBI caused inservice?

Most TBI incidents are also stressors. They have to rate TBI separately from PTSD.

Did you claim TBI and/or PTSD too?

 

 

Edited March 5, 2016 by Berta

[MCCFR97]

1 hour ago, asknod said:

Not quite on target. En banc decisions are the Court of Vet Appeals sitting as a whole of 9. Panel decisions  are what the gentleman is looking for. They consist of three Judges and constitute a precedential decision. Single Judge memorandums (only published electronically) are decided with a single judge because they do not cut any new legal ground. As such, the Court can decide far more appeals that have no matters that have not been adjudicated in the first instance already. En banc decisions are for earth-shattering appeals with far-reaching consequences for us Vets. BVA decisions will only cite to en banc or panel decisions. On occasion, Vets filing pro se have cited single-judge decisions that mirror their own. They have had spotty success doing it.

Here's an interesting article about it attached below. We may live to see the day when we are given precedential single- judge decisions if this VBMS disaster at the BVA creates an interminable backlog that spills over into the CAVC. 

 

Discussion about single judge rulings vs panel.pdf

Asknod, I can clearly see everyone's point of view, and completely understand  precedence and that it will not be weighted in their descision. They will not accept it. But what I love about the VA, is the allowance of loose evidence  rules. They accept buddy statements and give them weight (as long as they are done properly) and what the buddy's can state is pretty liberal. This is my thinking.......soon, (allegedly) I will be contacted and see a DRO and I will have my fave to face (allegedly). That is my one chance to sit with a live humanbeing and plead my case. No,this previous flight line benzene stage three MM in the years of 90-92 descision out of the VARO I'm currently dealing with will be accepted or cited in the review ..I'm willing to bet they at least give it a glance, plus my IMO, Buddy Statements, pictures....I think even in a clear mind I'm showing a jump ball but it should go to me. But I could be wrong. Today it's just buddy statements.....I'm still sick and crabby

Edited March 5, 2016 by MCCFR97
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[MCCFR97]

1 hour ago, Berta said:

 

Was the TBI caused inservice?

Most TBI incidents are also stressors. They have to rate TBI separately from PTSD.

Did you claim TBI and/or PTSD too?

 

 

No, the TBI is whole different thing, but Multiple Myleloma is a bone cancer and while fixing the cancer they find my neck is screwed (years of sucking up neck and arm pain) from something different