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Abestos Exposure Claim


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9 replies to this topic

#1 68mustang

 
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Posted 10 August 2007 - 06:54 PM

I file a VA claim back in 2002 for residuals of asbestos exposure,also claimed as asbestosis and pulmonary fibrosis. The claim was denied because the VA examiner reported that his findings for the lung studies including spirometry, lung volume,and diffusion with negative chest x-ray were normal. I don't believe that the x-ray was interpreted by a B certified x-ray reader. When I did the lung studies the examiner had me perform the tests to the point of complete exhaustion. I felt that he was making sure that I passed those tests no matter how they affected me.
The denial letter stated that private records from my doctor had not been received. It also stated there was an outstanding request for a CT scan of the chest, which was done in 1998. The denial letter also mentioned that the current exam done by the VA was sufficient evidence to determine that there were no diagnosed conditions and there was no need for additional information. The denial letter also mentioned that should the missing evidence be received, it would be reviewed to determine if any other action would be necessary.
The VA did receive a copy of the CT scan of the chest after the denial was made. However the VA never used the information to complete a review to determine if any other action would be necessary.
The CT scan of the chest report that was made by a private radiology office stated that I had a small linear area of increased density in the left lung base that probably represented pulmonary fibrosis. Their impression was that the small linear area of increased density seen in the left lung base more likely represented pulmonary fibrosis.
I was stationed on a WWII era destroyer that was built with asbestos in all areas of the ship. I worked with asbestos in the boileroom and engineroom with no protective equipment. The VA acknowledges that I provided references to support my report of asbestos exposure in service. I had no occupational exposure to asbestos before or after my military service.
Does any one have any idea whether it would be worthwhile to file a claim again being that I now have 10% bilateral tinnitus? I don't believe that the missing evidence was ever used by the VA and that makes me think that I should refiled the asbestos VA claim again.Thanks.
68mustang

#2 Berta

 
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Posted 11 August 2007 - 06:52 AM

Did you receive a VCAA letter that specifically told you what the VA needed as evidence?

How long ago was the denial letter?

Your MOS certainly put you into probable exposure-

sometimes that has to be clearly spelled out to VA-

Under the search at the top you should be able to find the VA PIES Occcupational exposure list regarding asbestoes claims. Yet it appears the VA has conceded asbestos exposure in your case-

I sent the whole list in with an asbestos vets claim I worked on- his DD 214 said one thing but his inservice shipboard MOSs (he had 2) put him into the actual PIES criteria.Asbestos vets should make sure they explain their shipboard MOS to the VA carefully.

WHat I do see as a problem is what you stated as to the independent medical opinion-

"The CT scan of the chest report that was made by a private radiology office stated that I had a small linear area of increased density in the left lung base that probably represented pulmonary fibrosis. Their impression was that the small linear area of increased density seen in the left lung base more likely represented pulmonary fibrosis."

Did they actually state "more than likely" as 'probably' will not do it-

I have posted "Getting an IMO" here available under search feature- it shows the bases that an IMO must cover and conform to-otherwise VA will not consider it as having merit.

It is not too late to get the opinion worded in a stronger way-

For a local vet I also googled his ship and found it had been dumped off the coast of Iran as it contained so much asbestos.
As evidence we sent the actual VA asbestos training letter also here under a search and considerable other info.
The veteran was going to obtain an IMO also.

Have you filed the NOD yet?
This decision is deficient as they did not consider any of your private records at all.

Why would you re-file the claim- Has the one year NOD time passed?

#3 68mustang

 
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Posted 11 August 2007 - 11:26 AM

Did you receive a VCAA letter that specifically told you what the VA needed as evidence?

How long ago was the denial letter?

Your MOS certainly put you into probable exposure-

sometimes that has to be clearly spelled out to VA-

Under the search at the top you should be able to find the VA PIES Occcupational exposure list regarding asbestoes claims. Yet it appears the VA has conceded asbestos exposure in your case-

I sent the whole list in with an asbestos vets claim I worked on- his DD 214 said one thing but his inservice shipboard MOSs (he had 2) put him into the actual PIES criteria.Asbestos vets should make sure they explain their shipboard MOS to the VA carefully.

WHat I do see as a problem is what you stated as to the independent medical opinion-

"The CT scan of the chest report that was made by a private radiology office stated that I had a small linear area of increased density in the left lung base that probably represented pulmonary fibrosis. Their impression was that the small linear area of increased density seen in the left lung base more likely represented pulmonary fibrosis."

Did they actually state "more than likely" as 'probably' will not do it-

I have posted "Getting an IMO" here available under search feature- it shows the bases that an IMO must cover and conform to-otherwise VA will not consider it as having merit.

It is not too late to get the opinion worded in a stronger way-

For a local vet I also googled his ship and found it had been dumped off the coast of Iran as it contained so much asbestos.
As evidence we sent the actual VA asbestos training letter also here under a search and considerable other info.
The veteran was going to obtain an IMO also.

Have you filed the NOD yet?
This decision is deficient as they did not consider any of your private records at all.

Why would you re-file the claim- Has the one year NOD time passed?

Thanks for replying Berta.
The denial letter was sent June 2002. I also received the VCAA letter. I sent the VA the Navy's Enlisted Career Guide listing for Boiler Technician and Engineman. Those listings detailed the duties of each occupation and where those duties were performed. I also sent the six month performance reports for each occupation with each report stating that I worked in the boileroom and engineroom.
I tried finding the VA PIES Occupational listing that you mentioned, but could not find it. The independent medical opinion actually states under impression "Small linear area of increased density is seen in the left lung base more likely representing pulmonary fibrosis". I plan to get another IMO because I would like to have my lungs checked out due to the latency period of asbestos exposure. I did not file a NOD because the time limit has passed. I want to refile because the VA relied only on their medical exams and never used my IMO. Plus this time I will send a buddy letter from a fellow shipmate who confirms that we worked with asbestos without protective equipment. If you have any other info I would appreciate it. Thanks.
68mustang

#4 Berta

 
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Posted 11 August 2007 - 02:10 PM

You sure could have challenged their denial-
but with better IMO and a buddy statement (although they probably conceded exposure) you could re-open-

the date of any potential award however will be the date of the -re-opened claim and not the older claim.

I am concerned as to why the VA did not acknowledge the CT and the IMO.

Were you sent an I-9 and full appeal rights?Did you file the I-9? Did they make any attempt to transfer your claim to the Board?

It seems to me that this claim 'might' even still be open-
I wonder what would happen if you sent VA copy of the RO letter that says:

"The denial letter also mentioned that should the missing evidence be received, it would be reviewed to determine if any other action would be necessary."
and asked them what the "review" determined as to that evidence.

It is best to focus on reopening the claim- but still-it would not hurt to ask them what the result of the review of the subsequent evidence was and send them a copy of this with the request:

"b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is


found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. Do not quote at length from letters, affidavits, hospital reports, etc. " M21-1 Part 6 Change 113, March 19, 2004

from:http://64.233.169.104/custom?q=cache:WFD_US_kZxcJ:www.warms.vba.va.gov/admin21/m21_1/part6/chg113.doc+M21-1+consider+all+evidence&hl=en&ct=clnk&cd=1&gl=us&lr=lang_en|lang_es&ie=UTF-8&client=pub-7326217334650925

Edited by Berta, 11 August 2007 - 02:13 PM.


#5 68mustang

 
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Posted 11 August 2007 - 03:00 PM

You sure could have challenged their denial-
but with better IMO and a buddy statement (although they probably conceded exposure) you could re-open-

the date of any potential award however will be the date of the -re-opened claim and not the older claim.

I am concerned as to why the VA did not acknowledge the CT and the IMO.

Were you sent an I-9 and full appeal rights?Did you file the I-9? Did they make any attempt to transfer your claim to the Board?

It seems to me that this claim 'might' even still be open-
I wonder what would happen if you sent VA copy of the RO letter that says:

"The denial letter also mentioned that should the missing evidence be received, it would be reviewed to determine if any other action would be necessary."
and asked them what the "review" determined as to that evidence.

It is best to focus on reopening the claim- but still-it would not hurt to ask them what the result of the review of the subsequent evidence was and send them a copy of this with the request:

"b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is


found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. Do not quote at length from letters, affidavits, hospital reports, etc. " M21-1 Part 6 Change 113, March 19, 2004

from:http://64.233.169.104/custom?q=cache:WFD_US_kZxcJ:www.warms.vba.va.gov/admin21/m21_1/part6/chg113.doc+M21-1+consider+all+evidence&hl=en&ct=clnk&cd=1&gl=us&lr=lang_en|lang_es&ie=UTF-8&client=pub-7326217334650925

Thanks again for responding.
I can't find an I-9 form but I do have a VA Form 4107 May 2001. I did not appeal it because this was the second claim that had been denied and I was fustrated. But now that I have looked again at my paperwork I realized that that the VA never got back to me on the missing evidence. The VA never acknowledged whether they reviewed it or if they reviewed what the outcome of the review was. I am going to do what you have stated and that is get another better IMO and see if I can get another buddy statement. I will ask that the claim be reopen and that the issues that you mentioned be addressed. Thanks.
68mustang

#6 68mustang

 
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Posted 11 August 2007 - 03:29 PM

You sure could have challenged their denial-
but with better IMO and a buddy statement (although they probably conceded exposure) you could re-open-

the date of any potential award however will be the date of the -re-opened claim and not the older claim.

I am concerned as to why the VA did not acknowledge the CT and the IMO.

Were you sent an I-9 and full appeal rights?Did you file the I-9? Did they make any attempt to transfer your claim to the Board?

It seems to me that this claim 'might' even still be open-
I wonder what would happen if you sent VA copy of the RO letter that says:

"The denial letter also mentioned that should the missing evidence be received, it would be reviewed to determine if any other action would be necessary."
and asked them what the "review" determined as to that evidence.

It is best to focus on reopening the claim- but still-it would not hurt to ask them what the result of the review of the subsequent evidence was and send them a copy of this with the request:

"b. Review of Evidence. Concisely cite and evaluate all evidence that is relevant and necessary to the determination. Rating decisions must evaluate all the evidence, including oral testimony given under oath and certified statements submitted by claimants, and must clearly explain why that evidence is


found to be persuasive or unpersuasive. Decisions must address all pertinent evidence and all of the claimant's contentions. Do not quote at length from letters, affidavits, hospital reports, etc. " M21-1 Part 6 Change 113, March 19, 2004

from:http://64.233.169.104/custom?q=cache:WFD_US_kZxcJ:www.warms.vba.va.gov/admin21/m21_1/part6/chg113.doc+M21-1+consider+all+evidence&hl=en&ct=clnk&cd=1&gl=us&lr=lang_en|lang_es&ie=UTF-8&client=pub-7326217334650925

Berta do you know why the message keeps going to right and how it can be corrected to show as regular page? Thanks.
68mustang

#7 Guest_morgan_*GuestMember

 
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Posted 11 August 2007 - 06:03 PM

68mustang,

About a year ago, I worked with a veteran who won an asbestos exposure case, and his MOS was not as solid as yours in proving pulmonary fibrosis caused by asbestos exposure. Dr. Bash reviewed his imaging films and diagnosed the disease. He is a neuroradiologist and is very good at reviewing cases of asbestos exposure. It's good to remember that a radiologist is "a doctor's doctor," in other words, when doctors can't assess fully what's going on, they order diagnostic imaging and strongly consider (if not rely on) the radiologist's opinion about the imaging results. Pulmonary fibrosis has numerous causes; one is asbestos exposure which shows up distinctively on diagnostic images.

Sometimes a diagnosis in plain English is all you need to win your claim. (I say sometimes because some at the VA can't read well.) Considering your MOS and a correct diagnosis, this should reach the level of "at least as likely as not" and should be ruled in your favor.

Don't give up.

On a side note, since your exposure to asbestos is irrefutible (based on accepted medical studies), keep careful watch over any bladder problems. The veteran I mentioned also got bladder cancer while in the claims process and it also was linked to his military asbestos exposure. The latent factor of asbestos injury can be 30-40 years.

Also, in the case for DIC benefits, it's important to fight for rating any condition that might be determined as primary cause of death.

Don't give up.

#8 68mustang

 
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Posted 11 August 2007 - 07:58 PM

68mustang,

About a year ago, I worked with a veteran who won an asbestos exposure case, and his MOS was not as solid as yours in proving pulmonary fibrosis caused by asbestos exposure. Dr. Bash reviewed his imaging films and diagnosed the disease. He is a neuroradiologist and is very good at reviewing cases of asbestos exposure. It's good to remember that a radiologist is "a doctor's doctor," in other words, when doctors can't assess fully what's going on, they order diagnostic imaging and strongly consider (if not rely on) the radiologist's opinion about the imaging results. Pulmonary fibrosis has numerous causes; one is asbestos exposure which shows up distinctively on diagnostic images.

Sometimes a diagnosis in plain English is all you need to win your claim. (I say sometimes because some at the VA can't read well.) Considering your MOS and a correct diagnosis, this should reach the level of "at least as likely as not" and should be ruled in your favor.

Don't give up.

On a side note, since your exposure to asbestos is irrefutible (based on accepted medical studies), keep careful watch over any bladder problems. The veteran I mentioned also got bladder cancer while in the claims process and it also was linked to his military asbestos exposure. The latent factor of asbestos injury can be 30-40 years.

Also, in the case for DIC benefits, it's important to fight for rating any condition that might be determined as primary cause of death.

Don't give up.

Thanks for the info you all have been a great help.
68mustang

#9 jbasser

 
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Posted 13 August 2007 - 11:34 AM

Mustang, The Va has been denying my asbestos claim for years. (1994) I was actually an asbestos worker.( insulator
Dont give up.

#10 68mustang

 
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Posted 13 August 2007 - 03:35 PM

Mustang, The Va has been denying my asbestos claim for years. (1994) I was actually an asbestos worker.( insulator
Dont give up.



Thanks for the info. Where was it that you were an asbestos insulator? I got exposed working in the boileroom during the time that the ship I was stationed on was in shipyard for an overhaul. 68mustang