Nehmer claim? Agent Orange Related Lung Cancer

[MEM]

Hi,

 My career army dad served in Vietnam.  He died after retirement at 48 of lung cancer.  

Does a deferred 21-534 claim from 1989 constitute a nehmer claim?  The information I've read on the internet seems to say claims that were denied are Nehmer, but I haven't seen much information about claims that were marked "deferred" and never adjudicated.  The claim includes AO presumptive illness.

Thank you all for your help and wealth of information that you share on this forum.  I've been reading it for a while and you have helped me so much!

 

Edited November 7, 2018 by MEM

[Berta]

This is my biggest concern at this point:

Was your dad's cancer a "respiratory" cancer- this is why:

 

https://community.hadit.com/topic/29983-viet-nam-vet-newly-diag-cancer-lungthroat-ao-related/?page=2

The MOPH veteran was denied because his lung cancer was Not a soft tissue sarcoma- I dont know if that is even  a valid reason for denial-and hope they appealed

 

"If a veteran was exposed to a herbicide agent (to include Agent Orange) during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, type II diabetes, Hodgkin's disease, ischemic heart disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea) and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma) 38 C.F.R. § 3.309(e)."

This is from a recent BVA decision:

https://www.va.gov/vetapp17/files1/1700243.txt

This link from the VA includes all respiratory lung cancers as presumptive to AO- the link does not mention a Hx of smoking or need for it to be a soft tissue saroma.

https://www.publichealth.va.gov/exposures/agentorange/conditions/

Do you have any medical records that indicate the cancer was of a "respiratory" nature?

Has your mother authorized the VA to obtain all of his private medical records?

Maybe I asked before--- was he autopsied?

Does the death certificate state Lung cancer as the primary cause of death, with anything else listed as a second contributing cause of death?

We have seen here very very few lung cancer claims. Our radio show technician, already catastrophically disabled by AO, suddenly developed lung cancer....but I dont think he claimed it before he died.

It seems the pathologist who read his lab work was the same impaired pathologist who killed at least 3 veterans at the Fayetteville AR VAMC. Our radio Tech ( "Stretch") 's wife has already contacted a FTCA law firm.

Other than Stretch I dont know if we have ever had a Vietnam Lung cancer vet here-and it concerns me that VA holds to "respiratory" lung cancer. I didnt know there were other types of lung cancer.

 

 

 

 

 

 

 

[MEM]

Quote

Do you have any medical records that indicate the cancer was of a "respiratory" nature?

We have submitted all medical records we have. We sent a copy to the VA.  They have acknowledged receiving the medical records.  The original diagnosis says "Non small cell carcinoma consistent with adenocarcinoma".  I can't tell you if that is "respiratory" in nature.  But, I found this on Publichealth.va.gov...

"Respiratory Cancers and Agent Orange

Veterans who develop respiratory cancer (lung, bronchus, larynx, or trachea) and were exposed to Agent Orange or other herbicides during military service do not have to prove a connection between their disease and service to be eligible to receive VA health care and disability compensation."

Does that mean Lung cancer is automatically considered a respiratory cancer?

"Does the death certificate state Lung cancer as the primary cause of death, with anything else listed as a second contributing cause of death?"

"Metastatic Lung Cancer" is the only cause of death on the death certificate.  There was no need for autopsy.  His cancer started in lungs and went everywhere else.

"Other than Stretch I dont know if we have ever had a Vietnam Lung cancer vet here-and it concerns me that VA holds to "respiratory" lung cancer. I didnt know there were other types of lung cancer."

There are several types of lung cancer, but you don't have respiration without lungs so wouldn't that mean all lung cancer is a respiratory cancer?  "Respiratory cancer" to me just means to include the bronchus, larynx and trachea along with lungs.  I believe one reason there aren't a lot of veterans claiming AO with lung cancer is because exactly what the VA guy did to my mom after my dad's death.  Also, the veteran believes they are to blame because they also smoked at some point.  I believe that may be the case if you're 70, which is the average age at which a smoker gets lung cancer,  but he was 47 when he was diagnosed.  

 

 

[Buck52]

 Your moms VSO is wrong on having to prove  his smoking  was the cause he got lung cancer.

Veterans who develop respiratory cancer (lung, bronchus, larynx, or trachea) and were exposed to Agent Orange or other herbicides during military service do not have to prove a connection between their disease and service to be eligible to receive VA health care and disability compensation.

 

This list shows Respiratory Cancer Includes Lung Cancer

http://www.usmedicine.com/agencies/department-of-veterans-affairs/va-makes-decision-on-expansion-of-agent-orange-presumptive-conditions/

 Note:Remember to send copies to VA and keep your originals/make extra copies incase you need them later   VA has a reputation of ''loseing records.  ect,,,ect,,,

Edited November 8, 2018 by Buck52

[Buck52]

You guys may want to check out all your fathers medical records  there maybe some secondary claims to all this too, here is a scheduled rating for all respiratory conditions. Under 38 4.97

Link: https://www.law.cornell.edu/cfr/text/38/4.97

check this list and compare what is in his medical records. and guard these records with your life   this is crucial evidence for his claim/claims

The only thing I am not sure of is if he would be entitled to secondary conditions? but some of them could be the cause of his death...if there saying cancer was not what killed him?  sorry to be so morbid  but we need to ask these questions or at least let you know.

[MEM]

I understand Buck52, and I appreciate your help.  It's hard to talk about, but necessary.  His cause of death was Metastatic Lung Cancer.  They say that because that's where his cancer started.  It then spread to his brain, spine, liver......

Thank you for your service!

[Buck52]

 Thank You MEM ,Like wise to your father.

Here is a case about Metastatic Lung Cancer the Veteran was granted for Lung cancer. Unfortunately he died of this horrific diseases before he won his case but his spouse was entitled..same for your mother.

https://www.va.gov/vetapp11/files2/1114124.txt

Read this when you have time..it will show you what your up against AND WRITE DOWN THE REGULATIONS IN THIS CASE THAT WAS BENEFICIAL TO THIS VETERAN , IT COULD HELP WITH YOUR FATHERS CLAIM,  but getting there is what Ms Berta is an expert about..once you have all your evidence and a lay out of all this that  you prove with medical records dates Dr's notes ect,,ect,,  you m om should win this.  you do have to show the DD 214 to prove boots on the ground and then the evidence of exposure to the Dioxin A.O.

I used some cases when I was working my claims(not cancer cases but about my conditions  ect,,ect,,)...Reading these cases will shed some lite as to the Regulations CAN HELP IN YOUR CLAIM and How VA BVA works ...not saying this is a sure way to win but it will help you understand the complex system the VA Uses.

Edited November 9, 2018 by Buck52