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.

[pwrslm]

Did you have an IMO on your original claim?

 

Is your new IMO properly worded?  That's a big key, they can ignore an IMO if its not worded correctly.

Use the terms;

Certain                                 -100% probable

more likely than not            -75% probable

as likely as not                   -50% probable

 

when creating the nexus.  These terms must be used especially for primary/direct service connection.

[armyrob]

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.

[Berta]

I think the 60 days regards the SOC?

It sounds like you sure did your homework on this,with the buddy statements and the Nexus letter!

There might be something you overlooked (hope not) as to the IMO criteria, as I hope the doctor gave them a CV (Curriculum Vitae or expounded on her credentials, which sound far better than anyone at VA could have, regarding this type of disability.

 

 

 

[armyrob]

If I'm understanding this correctly (sorry coffee is just now kicking in); as Berta asked, is this 60 day in regard to the SOC? If it is, you might want to elect the DRO within that 60 days and get a de novo review (you have 60 days to do this, or one year to appeal). This will allow you to go before a DRO, which given the complexity of the claim will allow you the opportunity to explain and narrate in front of the senior rater. 

If you keep submitting evidence without electing that -- they will just issue a SSOC. By electing the DRO within 60 days, you will be scheduled a DRO hearing. Meanwhile, that will afford you time to gather more evidence, get organized, and bring that information to the DRO hearing when it comes around (a few hundred days on average, but it depends which region). 

[ArNG11]

I am curious as to where your search winds up. People, specifically doctors don't like coming to conclusions like that from fear. The booger is getting a doctor to state it in the "at least as likely" as terms is difficult but possible.  Do you know how many thousands of soldiers, sailors, civilian contractor personnel would have a case and to also include civil damages against say KBR.  Please don't give up. I'm fighting this very same exposure from my time as a aircraft fuels mechanic, from my federal job. Plus trying for the year from Bucca and the "pits" the problem I'm facing is what caused it, the year from Bucca or the  years in federal service as a tank rat with DOD.  A hemeotologist, cancer specialist and environmental specialist would help immensely. 

unfortunately for me the is no benefit of doubt in Department of Labor claims. And no way of proving which exposure caused the most damage. There is no at least as likely in DOL claims.

ill share whatever research I've found. A class action case to look at would be the KBR case that back In appeals court circuit.

Edited January 30, 2016 by ArNG11
Wrong court

[Chuck75]

On 1/15/2016 at 10:36 PM, armyrob said:

It's also worth mentioning - submitting 'evidence' from previous BVA decisions has no bearing whatsoever. The BVA decisions are not precedents, and what one VLJ decided on a claim has no bearing on the next. The only decisions that establish a precedent are CAVC and higher. Concentrate your efforts on your claim, and if possible get an IMO that it is as likely as not. An IMO with such a statement will carry weight.

That's only partially true. Has to do with the totality of evidence, and so forth. The VA often picks and chooses what it will and will not use in a veteran's favor, and, at the same time, try to use anything it can as "negative" evidence. This includes the often used "no evidence is negative evidence" stance.

Edited February 2, 2016 by Chuck75