Defense Bill Passage and Bladder Cancer

[rebabevets]

I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 

[brokensoldier244th]

You can only have something tied to one diagnosis or etiology. If you want to apply for AO you'll have too claim a different condition. You won't get paid any more for it unless you qualify for SMC of some level. 

Edited January 2, 2021 by brokensoldier244th (see edit history)

[rebabevets]

But wouldn’t Vietnam have priority over Camp Lejeune , since it’s presumptive before Camp Lejeune as far as presumption goes. I don’t remember the date Camp Lejeune was approved but all my presumption for Vietnam Agent Orange go Back to when I retired July 1992

[rebabevets]

I do get SMC’s as well

[pacmanx1]

Quote

I already get compensation for bladder cancer for Camp Lejeune Water issue, now that it is added to Agent Orange does it mean that the VA should pay me the difference between Camp Lejeune and 1992 when I retired from the Marine Corps or do I have to re-apply for it for Agent Orange, or will the VA look at at current cases already receiving bladder cancer compensation. I’m considered 100% Disabled Permanently 

Yes, I think it is possible, but it really depends on the evidence in your records. IMO (In My Opinion) you were granted service-connected bladder cancer linked to Camp Lejeune, if you can prove that you had boots on ground (or something similar) that it could be possible for the VA to re-adjudicate your decision and grant an EED (Earlier Effective date). It is true that a veteran can only be service-connected for a particular condition/disability, since you are already service-connected for bladder cancer, VA would/could not service connect you again, but the VA can re-adjudicate your effective date due to new evidence, this new evidence is if congress has added it to the Agent Orange list and you can prove that you should get an EED. There may be some difference in pay.  I am quite sure that Ms. Berta can give better advice and I think I remember hearing that the VA maybe working on this, but it would be best to check on it and let us know. When were you granted 100%? Do you have proof of boots on ground or similar documentation? The more you post the more the board could help answer your question. Others will/may chime in.

[rebabevets]

Yes Boots on Ground, Vietnam 3/1 Marine Corps. August 11th 2016, date of permanent disability. I didn’t file for over 40 plus years. If they had not did Camp Lejeune then it would have automatically been agent Orange Vietnam 

[rebabevets]

Ischemic Heart Disease, peripheral Arteries Disease, carotid Arteries Disease, aortic Aneurism, iliac Aneurism, quadrupled Open Heart Surgery, Glaucoma both Eyes, Hiatal Hernia, leaky Heart Valve, had High Blood

Pressure since the 70’s, pending bypass

Both Legs, PTSD since the 70’s , Prostate Cancer, Bladder Cancer, Melanoma Cancer,

And various other Skin Cancers. I know have

Something showing up in my Lungs. Had a

stillborn Daughter at Camp

Lejeune in the 70’s, severely Autisic 19 year

Daughter, All thanks the Agent Orange in

Vietnam and Camp Lejeune Water issues.

I’m a Retired US Marine. Took me over 45

Years to get anything from the VA, Still waiting 

For the VA to approve High Blood Pressure,

PAD,and CAD, to the Agent Orange

[Berta]

"If they had not did Camp Lejeune then it would have automatically been agent Orange Vietnam"

If I understand this correctly, once the final regulations are posted( it is part of the NDAA) then the VA will be required to search for any incountry veteran who claimed bladder cancer in the past,who was denied, and then VA will  re open their claim, for the proper award and proper EED. (Nehmer Court Order)This is all explained here under a search for Footnote One Nehmer>

But the VA will not compensate twice for the same condition.

Then again there is still the question of the EED ( earlier effective date)-

VA gave you an EED already on your Camp LeJuene claim. What was the effective date?

What was the date you first claimed Bladder cancer ?

If there is a significant difference ( in those dates) meaning that a Nehmer claim would be beneficial to you- than I suggest, once the regulations are law, to file for the best EED possible.

I will find Footnote one and that explains the EED situation regarding past denials for what are now presumptives.

But I would believe that perhaps they would find the same EED you have now and then would not 

re adjudicate the claim under the future new presumptive.

 

 

 

[Berta]

This is from a recent post I made here in early December :

With these new presumptives coming I will post it again in the AO forum

 

"It is explained in this thread and within 10 pages here under a search of Footnote One:

Footnote One Nehmer (A0) - VA Disability Compensation Benefits Claims Research Forum - VA Disability Compensation Benefits Forums - HadIt.com Veterans

Probably thread is too long for many here to read:  so I copied that part of his email to me:

Rick Spataro, Head Nehmer lawyer of NVLSP, explained Footnote One to me this way in email as soon as the Regulations were being prepared for the 3 new AO presumptives in 2010:

 

“As for your second question, if the VA should have coded IHD in a rating decision, the claim that resulted in the rating decision could be considered a claim for benefits for IHD under footnote 1 of the Final Stipulation and Order in Nehmer. It basically depends on the timing of the claim, rating decision, and evidence received while the claim was pending. It may also depend on the rules in the Manual M21-1 regarding coding that were in effect at the time of the claim.

Typically, though, the following example would be accurate: A veteran filed a claim for SC for a low back disability on May 1, 1990. The VA obtained medical evidence showing a diagnosis of IHD in the development of that claim. The VA issued a rating decision on April 1, 1991, but does not code IHD (list IHD as “NSC” on the code sheet of the rating decision). Under footnote 1, since the condition should have been coded in the April 1, 1991 decision, the May 1, 1990 claim should be considered a claim for SC for IHD under Nehmer. “

As I mentioned here before I was a Footnote One Nehmer claimant.

VA "SHOULD have" coded my husband's IHD but didn't because they malpracticed on it.

The medical evidence I produced gave the claim a favorable EED of 1988, for AO IHD.

In Most cases however under Nehmer II most vets had one of the new presumptives listed in past rating decisions, with a diagnostic code, rating and a NSC, instead of SC which is what a successful AO claim produced as SC, under Footnote One Nehmer, if they had a now presumptive AO disability per Nehmer II.

I stress Nehmer II, of 2010, because it changed Nehmer 1.

Footnote One is the most important part of Nehmer II. Next to the three presumptives VA added in 2010."

https://community.hadit.com/topic/82924-ao-vets-and-footnote-one-nehmer/#comment-501081 

 

[Berta]

The "should have coded" provisio of Nehmer is something no claimant should overlook.

I am the only "should have coded" successful Nehmer claimant I know of but I will check with the BVA CAVC to see if there are any others out there-

Basically it means that VA was aware of a specific disability a claimant has, who also was incountry Vietnam, or Blue Water AO ,per the Blue Water regulations,or a survivor's claim that supports the VA medical evidence that "should have coded" their spouses AO presumptive, and if the claimant can prove it "should have been coded" in any past rating sheet, they can succeed in getting a proper award and proper EED.

 

 

[Berta]

I only found one claim at the BVA under the "should have been coded" aspect of Nehmer:

 

The appellant is the veteran's son- entitled under Nehmer to these retroactive  benefits:
 
"Analysis

The appellant is seeking retroactive benefits based on his contention that the Veteran filed a claim of entitlement to service connection for diabetes mellitus due to Agent Orange exposure in 1985 (now service connected as the cause of death), that the claim was denied, and that the Court's subsequent holding in Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal., May 2, 1989) (Nehmer I) invalidated that denial, leaving the claim still pending at the time of the Veteran's death.  

Pursuant to the September 2010 Order, the Board finds that the claim the Veteran submitted on November 13, 1985, can reasonably be construed as a claim (formal or informal, express or implied) of entitlement to service connection for diabetes.  Moreover, although the RO did not adjudicate the issue of entitlement to service connection for diabetes in the December 1985 rating decision, the diagnosis of  diabetes shown in the private clinical resume dated in September 1985 should have been "coded" in the December 1985 rating decision.  The RO did not adjudicate the claim so it remained pending before VA on May 3, 1989.  The diabetes diagnosed at that time was subsequently determined by VA to be type II, diabetes mellitus.  Accordingly, it is a covered disease and the appellant is entitled to retroactive benefits from the date of receipt of the claim, November 13, 1985.

https://www.va.gov/vetapp11/files5/1140940.txt

ORDER

Entitlement to retroactive benefits from November 13, 1985, for diabetes mellitus under 38 C.F.R. § 3.816 is granted."

Obviously it would be very difficult to prove a  AO  disability was not coded and should have been.
 

[Jocelyn Medlock-Price]

Is anyone here familiar with base NAS Dallas PFAS Contamination?  I'm suffering from the effects of that contamination but all of my claims were denied except high blood pressure.  I need andvice and help on appealing this decision. 

[GBArmy]

Hi Jocelyn Welcome to Hadit. It is going to be difficult to get a law firm that has 1) experience with VA BVA claim process and 2) experience in successfully winning PFAS claims. Many law firms concentrate on just some areas of VA law, not everything,  and as you are well aware PFAS is a relatively new health problem. My suggestion is to call some of the big law groups and find out if they either have experience in that area or could recommend someone. Try CC&K, Woods and Woods, Hill and Ponton to name a few. You may also want to ask if they happen to know a specialist that they would recommend in treating the symptoms. Maybe Dr. Ellis or Dr. Bash could recommend a specialist. If you got s-c disability for htn based on PFAS connection, that is going to help. Consider MH issues if the applicable. Good luck to you.

[Carl the Engineer]

https://www.wolfandbrown.com/tag/pfas/

425 military bases....

Hamslice

 

[Berta]

It would help if a moderator  could move your question to it's own thread, so that others will read it.

I assume your MOS was Firefighter.

My search at the BVA pulled up 31 decisions. for PFAS,  I have not read them all but even the denials will help you determine what you need as evidence:

https://www.index.va.gov/search/va/bva_search.jsp?QT=PFAS&EW=&AT=&ET=&RPP=10&DB=2021&DB=2020&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

This is a PFAS award

"ORDER

Entitlement to service connection for renal cell carcinoma is granted.
https://www.va.gov/vetapp21/files2/a21003241.txt

This February 2012 decision holds the key elements to proving SC for any specific disability that was caused by chemical retardents.

The above veteran's MOS was Fireman.
"In May 2020, Dr. B.M., a professor and VA oncologist, opined “it is more likely than not that [the Veteran’s] exposure to perfluorooctanoic acid (PFOA) and perfluorooctanoic sulfonate (PFOS) caused his renal cell carcinoma.”  See May 2020 Dr. B.M. medical opinion.  As rationale, Dr. B.M. noted the Veteran “had very extensive exposure to PFOS and PFOA” during his Naval service “as a fireman.”  Id.  He cited to Environmental Protection Agency (EPA) technical reports citing “PFOS and PFOA may cause cancer” and noted epidemiological studies found associations between PFOA exposure and cancer of the kidney.  Id.  The Board finds this opinion highly probative as he reviewed the Veteran’s pertinent medical history, lay statements, and provided a rationale backed by medical evidence."
The veteran had a strong medical opinion from a VA oncologist who also referred to literature supporting the claim.His or her opinion was based on expertise as an oncologist that the C & P doctors did not have.
It is unusual to obtain a strong medical opinion from a VA doctor, that was negated by 2 other VA medical opinions.
But VA tried to pull that on me years ago and the VACO  Cardio opinion I got  outweighed every attempt by VARO C & P doctors to go against the claim.
These types of claims need a strong Independent Medical Opinion, or IME ( Independent Medical exam) and the veteran must have a disability that the PFAS exposure could cause. The opinion must conform to the IMO./IME criteria here at hadit in that specific forum.
There is probably recent medical literature ,(if you google PFAS) that involves PSAF and exposure problems. There are different versions of how PSAF is referred to-it even can stand for some type of allergy but I think you meant a fire retardent disability.

 

 

[Berta]

This law firm is representing female firefighters in lawsuits for PFAS:

https://www.dolmanlaw.com/female-firefighters-afff/

I was surprised to read this:

"Studies looking for PFAS exposure rates among firefighters have predominantly focused on males. “This is the first study, to our knowledge, that’s been done on [specifically] women firefighters” said by Rachel Morello-Frosch, a professor of environmental science, policy, and management at UC Berkeley and senior author of the study."

I was with the local volunteer fire department for 8 years, in their auxiliary, and we had one female firefighter and the other closest volunteer fire department had 3 women. It is not unusual here in rural NY. 

My daughter, before she joined the military, was a volunteer junior firefighter, and tee were 3 other young teenage girls who also were junior fire fighters.

It has become difficult to get more young people to join our local fire departments. They would learn so much  and it also looks good on a job resume, to show they have done community service.

 

 

 

[Berta]

https://patch.com/texas/dallas-ftworth/toxic-pfas-found-dallas

I Googled NAS Dallas PFAS Contamination and a lot popped up:

https://www.google.com/search?q=NAS+Dallas+PFAS+Contamination&rlz=1C1CHBF_enUS695US695&ei=k6ybYP3FOoTNtQadiYDoCw&oq=NAS+Dallas+PFAS+Contamination&gs_lcp=Cgdnd3Mtd2l6EAwyBQghEKsCMgUIIRCrAjIFCCEQqwIyBQghEJIDMgUIIRCSAzIFCCEQkgMyBQghEJIDMgUIIRCSAzIFCCEQkgM6BwgAEEcQsANQ3yRY6FBgxmdoAXADeASAAZgaiAG-WpIBBTgtNS4xmAEAoAEBoAECqgEHZ3dzLXdperABAMgBCMABAQ&sclient=gws-wiz&ved=0ahUKEwi929Kw9sPwAhWEZs0KHZ0EAL0Q4dUDCA4

Also many years go our fire department had to change their gear because their had been too much asbestos in the older gear.

https://www.asbestos.com/veterans/air-force/

When my daughter graduated from Lackland, (USAF Intel) we went right over to their base fire department to get a tour- here in NY once a member of a Fire Dept-you are  ALWAYS a member!

Her unit had duty to water the palm tress next to the evergreens-on the base and she was the only airman who knew how to properly handle and retract the fire hose.

 

 

 

[MostDaysIhavenoidea]

On 5/11/2021 at 4:30 PM, Jocelyn Medlock-Price said:

Is anyone here familiar with base NAS Dallas PFAS Contamination?  I'm suffering from the effects of that contamination but all of my claims were denied except high blood pressure.  I need andvice and help on appealing this decision. 

Aviation related occupation or firefighter ?

AFFF (aqueous film forming foam)used by firefighters, often on the flight line and boats. Apparently that's kinda a big deal. I was told firefighters where instructed to swim in the stuff as part of their training.

Anyways, if your MOS is one which would predispose you to that stuff seems like you should bring that to the attention of the provider or make sure it's somehow uploaded in your additional evidence as to how your occupation caused your exposure; like "My MOS as a firefighter required I swim in AFFF as part of my required training" or " I was on the flight line when some ID10T decided to mess with the giant fire extinguisher and I was covered in the foam stuff" exposed by direct skin contact, breathing/respiratory, swallowed/GI, mucous membranes of eyes/nose/mouth

[Lemuel]

I do not think a diagnosis that did not show disabling affects can produce an EED.

I claimed Agent Orange in 1984 but had no disabling affects.  I had PTSD from other causes than being sprayed and unable to decontaminate.  I also had a TBI diagnosed in the physical examination at that time.  Result, 30% traumatic brain disease because you could not have two mental diagnosis for the same symptom condition.  Others got 50% PTSD for Agent Orange contamination because of the high incidence of cancer showing up in those exposed who were unable to decontaminate.

The director of mental health at the LA downtown VA clinic nixed my diagnosis of PTSD and tried to nix compensation at all stating I had an adjustment disorder anxiety attack overruling the examiner's diagnosis of PTSD.  My appeals went nowhere.  Still trying a CUE but do not expect much.  The higher rating is supposed to be applied in that circumstance.  Not having it applied created a hardship which made my mental condition worse at the time.  Having to ask my wife to avoid pregnancy because I was not being able "to provide."

I am going to argue that Noah v McDonald (attached) applies as a denial of due process.

I also have bladder cancer, not malignant but aggressive, with symptoms from 11/15/2020 or possibly from 02/28/2020.  I expect service connection from AO or being treated by the VA with Zantac AKA Ranitidine, with a known cancer causing ingredient, for 11 years for acid reflux.  I entered a new claim under both AO and 1151 for the bladder cancer.  Will not do anything financially, but may raise my rating to PT 100% combined from the 80% current combined rating.  Does affect state benefits such as a hunting license free on my choice of area with an allowed nephew to do the hunting using my license and me only being at the camp if I am able to be there.

My TBI was rated at 0% but service connected in 1974.  1984 30% traumatic brain disease (no organic personality disorder) and 1985 an extra-schedular TDIU from 1985 at 100% in a 2020 decision from the Director of Compensation Services on a remand from the BVA because my 1987 extra schedular claim had not been processed.

I am hoping to get a 50% TBI temporal lobe epilepsy rating from 1974 because of my employment difficulty ultimately resulting in ultimate unemployability because of my employment record except for part time work which I ultimately had to give up even trying to work.  This will also be a "denial of due process" because the VA did not follow regulations in diagnosing temporal lobe epilepsy.  No 38 CFR 4.42 injury examination in 1974. Combined with an EED for organic personality disorder and the failure to give me a hearing difficulty diagnosis of tinnitus (in my Navy health record) would result in a "denial of due process" increase from 0% to 80% which would raise my income to approximately what it should have been in that period if I had been able to maintain employment, provide savings and purchase a residence.

There is also the failure of the VA Medical Division in diagnosing "anosognosia" (look it up, it may apply to you) because it is not in the DSM-5.  It is in the DSM-5 under the diagnosis of "organic adjustment disorder" with the addition of "-subtle anosognosia".

I believe the VA avoidance of the neurological diagnosis of anosognosia is the greatest cause of the high combat veteran suicide rate.  It feels like a demon within that sabotages your productive efforts and simple daily relationships.

I have a neurologist who has offered to write an IMO.  Waiting for that.  He is treating me for my temporal lobe epilepsy which is not as obvious as grand mall epilepsy.

1 Noah v McDonald 5th due process.pdf

[BruceB]

On 1/1/2021 at 10:07 PM, rebabevets said:

But wouldn’t Vietnam have priority over Camp Lejeune , since it’s presumptive before Camp Lejeune as far as presumption goes. I don’t remember the date Camp Lejeune was approved but all my presumption for Vietnam Agent Orange go Back to when I retired July 1992

So it is when the law was passed. I claimed bladder cancer from 2010 and denied, when the law was passed in 2017 it was granted back to the day it was made a law. Now the crap part, I was 100 percent up until this month after a hearing where the VA reduced from 100 to 40%.

Something else to consider Okinawa (Futenma) stored AO during and after Vietnam, and there are 2 decisions one prostrate cancer and bladder cancer that won awards from the VA, yet when I tried to claim some maladies they rejected my claim twice. 

[Lemuel]

The CAVC recognized Constitutional 5th Amendment due process in Noah v McDonough attached to my earlier post.

What is needed is to get the Congress's limitation of compensation when it recognizes new disabilities (TBI 2008) and these new presumptive service connections under the Fourteenth Amendment Section (4), guaranteeing U S Debt especially and specifically to veterans.  I will give it a try if the BVA does not recognize it when I bring it up at my hearing, to get it to the CAVC.  I have TBI and other conditions that apply under the general 38 CFR Chapter 3 and Chapter 4 statements of intent and how to SC and rate conditions not in the Disability Compensation (DC) tables.

Really need a Constitutional Attorney for this but since none will take it, will have to go it alone like Noah did.