When the U.S. Department of Veterans Affairs (VA) denies a Disability Compensation claim, they always include a blurb that throws veterans for a loop. It goes like this:
“Service connection may be granted for a disability which began in military service or was caused by some event or experience in service. Your service treatment records do not contain complaints, treatment, or diagnosis for this condition.”
The VA then goes on to further explain that service connection is denied since the condition neither occurred in nor was caused by service. But once the veteran reads the previous statement about service treatment records failing to show that the condition was diagnosed while the veteran was still on active duty, it always gets veterans confused.
Service-Connection of Mesothelioma and Other Asbestos Diseases
If you read the first blog in this series, you may already understand why the VA is saying this, but for those of you who have not read it, here is what it said: Any disability or disease that manifested while you were on active duty is automatically service-connected. You don’t need to convince the VA that it was caused by your service.
Mesothelioma is a cancer often linked to military service. Veterans develop this deadly disease after repeated exposure to asbestos – on ships, in aircraft, in barracks, or overseas in third-world countries with buildings containing asbestos. Exposure to asbestos is the only cause of mesothelioma. Nothing else is proven to cause mesothelioma cancer.
Approximately one-third of patients diagnosed with mesothelioma each year are veterans, so the link between mesothelioma and the military is incontrovertible. Veterans also can develop asbestos lung cancer and non- malignant asbestos diseases from their military service.
Mesothelioma is a little trickier than other diseases since the cancer doesn’t begin growing for decades after your initial exposure to asbestos, which means almost all veterans are diagnosed well after their military service ended. Most veterans with mesothelioma are in their 60s or 70s age-wise when diagnosed, but they were exposed to asbestos in their 20s, 30s and 40s.
I digress. Let me explain what the VA is trying to say in referencing your service treatment records in your denial letter. What they are trying to say is this:
“If your mesothelioma had been diagnosed while you were still on active duty and was documented in your service treatment records, we would have been able to simply approve your claim. However, because there was no mention of your mesothelioma or symptoms of mesothelioma while you were on active duty, we couldn’t just approve your claim. We had to review your asbestos exposure history in the military and compare that to your civilian work history in order to determine where you had more exposure to asbestos.”
Instead of explaining what they mean, it’s a whole lot easier for the VA to simply say “we didn’t see any mention of your mesothelioma in your service treatment records, and we didn’t see a connection between it and your service.” But this provides little insight into why the VA denied your claim, and how to appeal it.
Why the VA Likely Rejected Your Mesothelioma VA Disability Claim
What you need to understand is the only reason the VA can deny your VA mesothelioma claim is because you didn’t convince them that you had at least as much exposure to asbestos in the military as you did in your civilian jobs. This is because the only known cause of these two mesothelioma cancers is asbestos.
The rule of thumb is your percentage of military asbestos exposure. If at least 50% of your exposure to asbestos occurred in the military, then you qualify for VA Disability Compensation and will need to provide a detailed explanation of your military exposures, as well as an account of all your civilian jobs. If you convince the VA that at least half your occupational exposure occurred during military service, they will approve your claim.
If less than 50% occurred in the military and most of your exposure occurred at your civilian jobs, then you won’t qualify for VA Disability Compensation. Instead, you may qualify for VA Pension, which results in a lower monthly payment.
Keep in mind that you can detail your exposures to asbestos in the military and make a clear case that you were exposed frequently. But if you don’t include sufficient details about your civilian jobs, and any potential exposure there, the VA has nothing to compare it to. This means they will most likely deny your claim.
Let me explain how to file an appeal with an example. I recently had a veteran contact me requesting help filing an appeal for his denied pleural mesothelioma claim. He originally filed his claim without the assistance of a Veteran Service Officer (VSO) or a VA Claims Agent like me. So when the VA started asking him vague questions about his exposures to asbestos, he was ill-equipped to know exactly what they were asking for.
This veteran was a Quartermaster in the Navy and was stationed onboard a ship for almost four years in the late 1960s. He was definitely exposed to asbestos in the Navy during his service. I would know, as I served in the Navy for more than two decades. When I read his statement to the VA regarding his exposure history, it was rather thin in terms of explaining how he was exposed in the Navy, and it contained no information about his civilian jobs.
As such, the VA sent him a letter asking him to provide more details about his military exposures to asbestos and asked him what kind of jobs he did before and after his service in the Navy. Here is the exact wording in that letter:
“What type of work did you do before service? What type of work have you been doing since service? Please state how long you did each job.”
This is one of those vague questions I mentioned, because the VA doesn’t just need to know what civilian jobs you had, and how long you had them. They need to know if you were exposed to asbestos in any of your civilian jobs, and if so, how much. Therefore, if you don’t explain that in your response, the VA will simply make assumptions about the likelihood that you were exposed in those civilian jobs. And you never want the VA making assumptions about any part of your claim.
What the VA Needs When You Appeal a VA Disability Claim Rejection
In this example, the veteran’s response letter did provide a more thorough explanation of his Navy exposures, but because the VA only asked him to provide a list of his civilian jobs before and after the Navy, and how long he worked there, that is all he provided.
Before the Navy, he said that he worked in a furniture factory for a couple years before enlisting. After serving in the Navy, he went to college to get an accounting degree. He then worked for a local steel mill for the next 32 years. Some furniture factories and all steel mills have asbestos. Not all, but most.
Now, put yourself in the position of the Rating Officer at the VA who has to make a determination as to whether this veteran had more exposure in the Navy as a Quartermaster (not exactly an asbestos job) or in his civilian career. Without any details as to whether he was exposed to asbestos in his civilian jobs, you might conclude, as his Rating Officer did, that he probably had more exposure in the factory and the steel mill, than he did in the Navy.
So that is what we addressed in his appeal. I helped him craft a new Asbestos Exposure Summary Letter. We explained that as part of his job as a Quartermaster, he frequently had to go to the Engine Room to ensure all the clocks were accurate. Oftentimes, the Machinist Mates and Boilerman would be performing maintenance that included work with asbestos, which we explained in greater detail.
He also spent eight months in a shipyard for an overhaul, which he never mentioned in his original claim. Shipyards are ripe with asbestos since ships were built extensively with the mineral up until the 1980s.
We explained that while in the shipyard, much of the work was performed on systems insulated with asbestos or containing asbestos parts, and that everyone was routinely being exposed to asbestos during the overhaul. We also explained that he worked, lived and slept onboard the ship during the entire eight months.
We then provided a detailed account of each of his civilian jobs. This veteran recalled that, to his knowledge, there wasn’t any asbestos in the factory he worked in, nor was he exposed to asbestos in the steel mill because he worked in the corporate office and not the actual mill.
This is a huge part of his civilian work experience that was missing in his original claim and appeal. We needed to specify that the job he performed for the steel mill was not at risk of exposure. If you simply say, “I worked in a steel mill” with no other context, the VA will make an assumption that you don’t want them to make.
This more detailed explanation convinced the VA that the majority of his asbestos exposure did, in fact, occur in the Navy, and the VA approved the mesothelioma Disability Compensation claim on appeal.
Hopefully, this helps you understand that it is not necessary to have been diagnosed with your asbestos illness while on active duty, but it does require that you explain, in sufficient detail, why you believe the majority of your occupational exposure occurred in the military.
If you have filed a VA Disability Compensation claim for an asbestos illness like mesothelioma and been denied, feel free to reach out to me. I’ll be happy to help you appeal your claim.
You can call me at 844-838-6376 or email me at email@example.com.
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