Service Connection in Aviator Cancer Cases
The RRVA Aviator Medical Issues Committee
The text below is taken from an article written for the 2021-2022 Winter MIG SWEEP. That text has been edited for content here.
First, the committee is working to identify potential disability claim paths to service connection for Rats with cancers. You will appreciate there is no shortcut and no speed lane to service connection. I wrote about this in the Fall 2021 MIG SWEEP. If you did not read that article, please go back and look it over. To build on that article’s service connection conversation, I believe there is a potential path to service connection thanks in large part to the U.S. Air Force School of Aerospace Medicine’s (USAFSAM) May 2021 Cancer Study of Aviators 1970-2004. That study is posted in its entirety on the RRVA AMIC Home Medical Tab as is a brief RRVA AMIC summary of that study. Please look the AMIC document over to understand the important findings in the May 2021 USAFSAM Study.
Second, if there might be a path to service connection for some Rats, what does it look like? if you suffer/-ed from prostate cancer, melanoma, or non-Hodgkin lymphoma, you may have a path to service connection. To best manage expectations, this quickly gets complicated as it pertains to VA claim filing, the elements of a fully developed case, and helpful supporting medical evidence. I will keep it simple by staying at the FL180 altitude band of those three topics. Simply put, there may be a way you can leverage the USAFSAM 1970-2004 Study to your benefit in “connecting the dots” in your disability & compensation claim—getting to what is commonly called a fully developed case. Before we get started, know that you need service connection in order to qualify for an associated disability rating percentage. Service connection is a multi-faceted legal doctrine as outlined in Part 38 of the Code of Federal Regulations (38CFR) that governs all aspects of connection. With no-kidding five types of service connection, the single type of connection you will likely care about is Direct Service Connection.
This brings us to the third and main point: how do you develop a direct service connection case aided by the May 21 USAFSAM Cancer Study? I’m not an attorney nor do I play one on TV. Neither does this article constitute legal advice. Rather, this is a distillation of the plain text language of 38CFR CH. 1 §3.302 through 3.304 and is offered not as a substitute for your due diligence, but a flashlight to illuminate your path as you fully develop your case. A generally accepted way to develop a direct service connection case is what is termed, the Big 3. The Big 3 method has three elements. The first element is medical evidence that establishes a current disease or medical condition. Simply put, this is your prostate, melanoma, or non-Hodgkin lymphoma diagnosis put on paper by your board-certified provider; i.e., oncologist, etc. The second element is evidence that your disease occurred more likely than not as a consequence of your military service. Since the above three cancers seldom if ever occur during active military service but often occur years if not decades later, this has been where most previous service connection cases faltered. But with the USAFSAM May 21 cancer study, you have a document published by a U.S. government military department that states that prostate, melanoma, and non-Hodgkin lymphoma occur at substantially higher incidence (and mortality) than either of the study’s two control groups, one of which was the U.S. general population. With that study in hand and your service records, you ought to be able to draw a strong inference that links military service to a cancer diagnosis. However, the third element is what ties it all together. While you do in fact lack nexus data—scientific evidence that something in the military operating environment that can cause cancer did cause cancer in your case, it is our hope that an astute care provider can triangulate off of the USAFSAM May 21 study, you, and your records to tie all of this together using compelling medical judgement.
If you are attempting to seek service connection for prostate, melanoma, or non-Hodgkin lymphoma, this was an outline of a method used with some success by other veterans in other type claims. As with all veteran claim cases, how and what you write in your claim (VA form 21-526EZ) correlates to eventual success. If you do not know what this writing and reasoning standard is after reviewing the applicable 38CFR CH. 1 passages (above), then I advocate you seek out a skilled lawyer experienced in successfully arguing cases in the VA courts.
Hand in hand with that recommendation is to work closely with your care providers that write in support of your case. Make sure your doctor(s) know how to write to VBA claims examiners—not a typical literary audience or common form of writing. A word of caution: if you seek out a VSO, understand that while they are qualified to represent you before the VA their record of success matters, and their legal craftsmanship varies. If a VA attorney will not take on your case, then you may have to locate a VSO you trust. Then, work hard to assist that individual, especially if that specific VSO has not worked a cancer case like yours and does not know about the May 2021 USAFSAM 1970-2004 Aviator Cancer Study. As always, ask plenty of questions.