Chronic Beryllium Disease (CBD)

On this page we have collected specific references to Chronic Beryllium Disease(CBD) from the DEEOIC Procedure Manual, Bulletins, and Final Decisions, to illustrate how this illness is viewed under the EEOICPA.

Note: Page numbers below refer to the documents available on our DEEOIC Resources page.

Definition of CBD

Chronic beryllium disease is predominantly a pulmonary granulomatosis that was originally described in 1946. Symptoms usually include dyspnea and cough. Fever, anorexia, and weight loss are common. Skin lesions are the most common extrathoracic manifestation. Granulomatous hepatitis, hypercalcemia, and kidney stones can also occur. Radiographic and physiologic abnormalities are similar to those in sarcoidosis.

While traditionally the pathologic changes included granulomas and cellular interstitial changes, the hallmark of the disease today is the well-formed granuloma. Immunologic studies have demonstrated a cell-mediated response to beryllium that is due to an accumulation of CD4+ T cells at the site of disease activity. Diagnosis depends on the demonstration of pathologic changes (i.e., granuloma) and evidence that the granuloma was caused by a hypersensitivity to beryllium (i.e., positive lung proliferative response to beryllium). Using these criteria, the diagnosis of chronic beryllium disease can now be made before the onset of clinical symptoms. Whether, with early diagnosis, the natural course of this condition will be the same as when it was traditionally diagnosed is not known.

Currently, corticosteroids are used to treat patients with significant symptoms or evidence of progressive disease.
*Source

DEEOIC Procedure Manual entries concerning CBD

Page 32
2. Provisions of EEOICPA.

• a. Requirements for Part B Eligibility. A covered employee must satisfy criteria of eligibility for at least one of the following compensable categories under Part B:
• (1) Beryllium sensitivity or chronic beryllium disease resulting from exposure to beryllium in the performance of duty.

Page 72

• c. Consideration of Employment. In addition to considering the claimed medical condition(s), the designated employee considers the claimed employment when determining whether the case is created in ECMS B, ECMS E, or both.
• (4) If a claim identifies a Part E medical condition and employment at an AWE or a BE Vendor with no indication of the site being designated as a DOE facility for remediation, the Part E medical condition is specified on the worksheet for entry in ECMS B only, because to establish covered employment under Part E, the employee had to have been a DOE contractor employee.
• Example 1: If only Part B medical conditions are checked on the claim form (e.g., Chronic Beryllium Disease, Beryllium Sensitivity, Chronic Silicosis, or Cancer) and DOE contractor employment is claimed, the designated employee checks Box 1a of the worksheet for data entry into both ECMS B and ECMS E.

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• 11. Reviewing Part B/E Claims. A claim accepted under Part B is also accepted for causation under Part E for the accepted Part B covered occupational illness, if all other appropriate criteria under Part E are met.

Unlike a Part E claim with an accepted Part B claim, a claim that has been accepted under Part E is not automatically accepted under Part B.

• In developing these cases, the CE needs to be alert to the differences in medical, employment, and survivorship requirements between Part B and E claims (including RECA claims), since these differences can result in the need for additional development and/or non-approval of the claim under Part E, even though it has been approved under Part B.
• a. Medical Differences Between Part B and E Claims. Covered illnesses under Part E include all the covered occupational illnesses under Part B (i.e., beryllium sensitivity, chronic beryllium disease, chronic silicosis, and cancer) plus additional covered illnesses (e.g., asbestosis).

However, the covered occupational illnesses under Part B do not include all the covered illnesses under Part E (for example, asbestosis, peripheral neuropathy, and anemia).

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2. Facility Coverage. The EEOICPA provides facility definitions that serve as the basis for determining covered employment. The following summaries provide a general definition of each type of facility covered:

• b. Beryllium Vendor (BE Vendor) Facilities. Be Vendor facilities are companies which are either named in the Act or DOE has determined that they processed or produced beryllium for sale to, or use by DOE. The Act names several beryllium vendors by corporate name and these are known as statutory beryllium vendors. Any employee of a statutory beryllium vendor who worked for the vendor during periods when the
  company was engaged in activities related to the production or processing of beryllium for sale to or use by DOE, has covered employment, regardless of work location. Other beryllium vendors, which are location-specific, were designated by DOE through publication in the Federal Register. The final list of designated beryllium vendors was issued on December 27, 2002.
• (1) Beryllium vendor coverage extends to direct employees of the vendor, its contractors or subcontractors, or any Federal employee who may have been exposed to beryllium at a facility owned, operated or occupied by the vendor.
• (2) Coverage for beryllium vendor employment is limited to those benefits available under Part B of the EEOICPA for beryllium sensitivity and chronic beryllium disease.

Page 187
h. Developing for Toxic Substance Exposure. When developing Part E cases the CE uses established development techniques in addition to certain other steps unique to the Part E adjudication process. The Final Adjudication Branch (FAB) develops medical conditions and employment where possible to avoid issuing a remand order for further development if such development can be conducted at the FAB with little additional effort.

• (3) Example. If the claimed illness is chronic silicosis, chronic beryllium disease(CBD), asbestosis, or another condition known to arise almost exclusively out of occupational exposure, but the evidence is not sufficient to accept the claim, the CE refrains from issuing a denial if additional development might establish the employee’s claim for benefits.

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2. Sources of Medical Evidence. Most medical reports come from one of these sources:

• c. ORISE (Oak Ridge Institute for Science and Education), which administers the beryllium screening program by providing initial beryllium-related testing at various locations across the country.
  Individuals who test positive for beryllium sensitivity are offered more extensive testing for chronic beryllium disease(CBD) and medical monitoring.

Page 267
3. Identifying Claimed Condition as Part B, Part E, or Both. The CE first determines whether the type of claim filed is for employee benefits (i.e., Form EE-1) or for survivor benefits (i.e., Form EE-2). Then the CE reviews the condition(s) claimed, either marked or written on the form, and determines whether the claimed condition is potentially covered under Part B, Part E, or both.

Those conditions covered under Part B are beryllium sensitivity, chronic beryllium disease , chronic silicosis, and cancer. Under Part E, all conditions (not symptoms of a condition) are covered, including those covered under Part B. This includes, but is not limited to, diagnosed cancers, respiratory illnesses, cardiac illnesses, and also mental illnesses that originate from a physical condition, such as a neurological condition.

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6. Established Chronic Beryllium Disease(CBD) Before 1993, Part B.
The evidence required to establish a claim for established chronic beryllium disease(CBD) under Part B of the Act is described under 42 U.S.C. §7384l(13). Whether to use the pre- or post-1993 CBD criteria depends upon the totality of the medical evidence, including when the employee was tested for, diagnosed with, and/or treated for a chronic respiratory disorder.

If the earliest dated document showing that the employee was either treated for, tested or diagnosed with a chronic respiratory disorder is dated prior to January 1, 1993, the pre-1993 CBD criteria may be
used. If the earliest dated document is dated after January 1, 1993, the post-1993 CBD criteria may be used. If the employee sought treatment before 1993 and the document verifies that the treatment
was performed prior to January 1, 1993, but the document is dated on or after January 1, 1993, the pre-1993 CBD criteria may be used.

To establish pre-1993 CBD, the medical documentation must include at least three of the following: characteristic chest radiographic (or computed tomography (CT)) abnormalities; restrictive or obstructive lung physiology testing or diffusing lung capacity defect; lung pathology consistent with CBD; a clinical course consistent with a chronic respiratory disorder; or immunologic tests showing beryllium sensitivity (e.g., skin patch test or beryllium blood test preferred).

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7. Established Chronic Beryllium Disease On/After January 1, 1993, Part B.
The medical documentation needs to include an abnormal BeLPT/BeLTT performed on either blood or lung lavage cells or a positive beryllium patch test, in addition to evidence of lung pathology consistent with CBD. Proof of lung pathology consistent with CBD includes, but is not limited to: a lung biopsy showing granulomas or a lymphocytic process consistent with CBD; a computerized axial tomography (CAT) scan showing changes consistent with CBD; or a pulmonary function or exercise test showing pulmonary
deficits consistent with CBD.

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b. Referral to a DMC. CEs should refer claims to a DMC for a medical review after all means of obtaining the evidence from the treating physician is exhausted. Referrals are also sent to a DMC when the medical reports and/or tests do not include a clear interpretation and/or if there is a specific question(s) about the medical evidence. When a referral to a DMC is made, all the medical records in the case file are sent to the DMC for review. Examples of situations when a referral is needed include:

• (1) Medical test results that do not provide a clear interpretation (e.g., pathology report, BeLPT, X-ray, CT scan); and
• (2) Pre-1993 and/or post-1993 CBD tests (e.g., chest X- ray, diffusion lung capacity defect, lung biopsy showing granulomas, lymphocytic process, or pulmonary function study) that do not denote abnormalities or defects, contain the finding “consistent with chronic beryllium disease”, or are inconclusive.

The opinion of the DMC, when properly supported by medical rationale, carries significant probative value and is considered reliable when issuing the Recommended Decision and/or Final Decision.

c. Beryllium Sensitivity Decision When CBD Is Claimed. When CBD claimed on Form EE-1 for a living employee, but the evidence suppor the existence of beryllium sensitivity only, the CE still develops the claim for CBD.

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6. Linking Employee’s Death to an Occupational or Covered Illness. For a compensable claim under Part B, it must be shown that the employee was diagnosed with an occupational illness including: cancer, chronic beryllium disease or chronic silicosis. The evidence does not need to show that any one of these conditions was linked to the employee’s death, merely that one or more was diagnosed. This also applies to a covered illness that develops over the course of the employee’s life and resolves by way of medical treatment. However, for a compensable claim under Part E, the evidence must establish that an occupational exposure to a toxic substance was at least as likely as not a significant factor in causing, contributing to, or aggravating the death of the employee.

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8. Natural Progression/Development (Pathogenesis). There are medical conditions that are expected to develop due to the natural progression of the accepted illness. Natural progression is an expected measurable change in the illness that occurs with the
passage of time.

The CE may accept certain conditions arising as a natural progression of accepted condition(s) when he or she is notified of the existence
of these secondary medical conditions. Exhibit 1 outlines secondary conditions that are known to result from Chronic Beryllium Disease
and Silicosis, and can be accepted upon the receipt of notification. Notification must be in the form of a well-rationalized medical
report diagnosing a secondary condition that progressed/developed from the accepted condition. When notified of such a condition
listed in Exhibit 1, the CE updates ECMS and sends an appropriate letter to the employee.

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11. Impairment and Wage-Loss. Consequential conditions may cause additional impairment or wage-loss under Part E, but do not result in an additional lump sum award under Part B.

• b. Wage-Loss. The acceptance of a consequential condition may affect the claimant’s entitlement to wage-loss. Wage-loss is calculated using the first day that the employee lost wages due to the covered illness (see EEOICPA PM 2-1400 for further discussion of wage-loss). In certain instances, the consequential condition may be the initial cause of the employee’s wage-loss. For example, a claimant submits
  medical evidence showing that pulmonary hypertension caused his or her wage-loss, and shows a diagnosis of Chronic Beryllium Disease(CBD) three years thereafter. In this instance, CBD is accepted under Parts B and E as the primary condition and pulmonary hypertension is accepted as the consequential condition under Parts B and E. Also, the claimant may receive wage-loss benefits under Part E dating from the time that the he or she first lost wages due to the pulmonary hypertension.

DEEOIC Bulletins concerning CBD

Page 644
EEOICPA BULLETIN NO.04-02
Issue Date: October 3, 2003
________________________________________________________________
Effective Date: October 3, 2003
________________________________________________________________
Expiration Date: October 3, 2004
________________________________________________________________
Subject: Case Transfer Sheet.

Background: Case files are routinely transferred between the District Offices (DO), the Final
Adjudication Branch (FAB), and National Office (NO).

Currently when a case file is transferred, the initiator completes a transfer sheet and attaches it to
the outside of the jacket. However each office has been using different versions of a case transfer
sheet. In order to maintain consistency throughout the program, one form has been created. The
new form was created based on the various current forms and comments from the DO and FAB.
The sheet will be available on the shared drive in Adobe format.

Reference: Procedure Manual Part 1-500.
Purpose: To provide procedures for using the new case transfer form for transferring cases between
DO, FAB, and NO.
Applicability: All staff.
Actions:
1. When a case is ready for transfer, the person transferring the case (sender) uses the “Case Transfer Sheet” (sheet)(see Attachment 1).
2. Most of the fields are self-explanatory and must have an entry. The “Reason for Transfer” field contains several boxes to check.
· When the case is transferred from the DO to FAB with a recommended decision, select the option “FAB Review.”
· When the case is transferred to the NO with policy issues, e.g. stepchildren, employment verification, NIOSH dose reconstruction review, etc, select the option “Policy/Procedure” and provide an explanation for the request under the “Comments” field. This form will not replace the WS/WR forms.
· When the case is transferred to the NO with a request to reopen or vacate a remand, select the option “Reopen”.
· When the case is transferred to the NO for medical review of CBD or cancer, select the option “Medical”. This option is selected for any issues pertaining to medical.
· When the case is transferred to the NO specifically for review by the Office of the Solicitor, e.g. power of attorney, offset, etc, select the option “Solicitor”. This selection must include an explanation in the “Comments” field.
· When the case is transferred from FAB to DO and the final decision is not an affirmation, select the option “Remand/Reversal”.
· When the case is transferred from FAB to DO and the final decision affirms the recommended decision, select the option “Affirmation”.
· When the case is transferred for any issue not specified, select the option “Other” and provide a corresponding note in the “Comments” field.

3. Upon completion, the form is printed and attached to the front outside jacket cover of the case being transferred.

4. The completed sheet is signed by both the sender (the initiator) and the authorizing signatory person. These may be the same person if the authorizing signatory is also the sender. If the case is being transferred from the DO to the FAB for a final decision, the senior claims examiner may be the authorizing signatory. The designation of authorizing signatory is at the District Director’s discretion. If the case is being returned by FAB to the DO, the hearing representative may be the authorizing signatory. The designation of authorizing signatory is at the discretion of the FAB Manager.

5. All cases sent to the NO require the authorization of the District Director or FAB Manager. Cases transferred from the NO are authorized by the Branch of Policies, Regulations & Procedures (BPRP) staff.

6. Once the case transfer sheet has been completed and signed by the appropriate individuals, the case is ready for transfer. The transfer of the case must be reflected in ECMS (see Procedure Manual Part 1-500 Section 3).

7. Upon receipt of the transferred case, the receiving office spindles the transfer sheet into the case and takes the action reflected on the transfer sheet. The receipt of the case must be reflected in ECMS (see Procedure Manual Part 1-500 Section 3).

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.

PETER M. TURCIC
Director, Division of Energy Employees
Occupational Illness Compensation
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants,
Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs,
Hearing Representatives, District Office Mail & File Sections
Attachment 1: Case Transfer Sheet

Page 688
EEOICPA BULLETIN NO. 03-02
Issue Date: June 5, 2003
___________________________________________________________
Effective Date: June 5, 2003
___________________________________________________________
Expiration Date: June 5, 2004
___________________________________________________________
NOTE: This bulletin replaces Bulletin 02-26, Referrals to Dr. Lee Newman.
Subject: Referring case files to the District Medical Consultants (DMC) for review.
Background: The Division of Energy Employees Occupational Illness Compensation (DEEOIC) has negotiated contracts with several physicians to fulfill the role of District Medical Consultant (DMC) for the district offices (DO).

The DMC’s role will be two-fold: 1) evaluating medical evidence and rendering medical opinions and 2) interpreting test results.

The District Director (DD) will designate an individual in each district office (DO) who will process and track the referrals and coordinate with Computer Sciences Corporation (CSC) to ensure prompt payment of the bills. For the purposes of this bulletin, this individual is called the Medical Scheduler.

The Medical Scheduler will be provided with a list of the DMCs, their addresses, telephone numbers, specialties and points of contact.

The DMCs are located in various states across the U.S. and the Medical Scheduler will make the referral selections based upon the DMC’s specialty.

Reference: EEOICPA Procedure Manual Chapter 2-300.9.
Purpose: To provide guidance on the procedures for referring case files to the DMC’s.
Applicability: All staff.
Actions:
1. Once designated, the Medical Scheduler creates and maintains a DMC file system that contains individual file folders labeled with the names of the DMCs.
2. Each time a medical review is completed, the Medical Scheduler places a copy of the report in the DMC’s folder.
3. CEs will refer claims to a DMC for medical review if they are unable to interpret medical evidence and have no success with obtaining clarification from the treating physician and/or have a specific question(s) on the medical evidence (PM Chapter 2-300.9). Examples of situations when a referral is needed may include:

• Medical tests are submitted which do not provide a clear interpretation (i.e., pathology report, LPT, X-ray, CT scan).
• Pre-1993 medical evidence is submitted that includes a lung biopsy report that is inconclusive.

When a CE identifies a claim for referral to a DMC, the CE must complete the District Medical Consultant Referral Form (Attachment 1) and include it in the front of the referral package described below. All referral packages to the DMC are prepared by the CE and given to the Medical Scheduler. The package must include the following information.

The CE completes all of the information required in Attachment 1 except for the section that provides the information on the DMC. The Medical Scheduler completes this portion of the form. The section concerning required medical information, e.g., X-ray or CT scan films, lists information that may be included for the review. The CE signs the form before forwarding it to the Medical Scheduler.

A cover letter to the DMC that includes a description of the billing specifications (See Attachment 2).

The Statement of Accepted Facts (SOAF) is a narrative summary of the factual findings in a case. The SOAF must include the claimant’s name and
case file number; a detailed description of the claimant’s employment history; personal information, such as date of birth, date of death, etc.; exposure data,
such as radiation, beryllium, silica; accepted condition(s); and any other diagnosed medical conditions. Additional medical information is contained in
the medical evidence that is sent to the DMC, and need not be reiterated in the SOAF.

The CE must limit the questions to only those that address the particular issue or problem for which clarification is required. Questions to the DMC must
not be general, but specific to each statutory requirement. For example, in a pre-1993 CBD claim, a general question is, “Based upon your review of the
enclosed medical evidence, do you feel that the claimant had CBD?” Specific questions are, “Is the lung pathology consistent with CBD? Does the x-ray
show characteristic abnormalities? Does the record show a clinical course consistent with a respiratory disorder?” In a claim for silicosis, specific
questions are, “Is the CAT scan result consistent with silicosis?” or “Is the lung biopsy result consistent with silicosis?” In a cancer claim, a specific
question is, “Based upon your review of the medical evidence of record and the pathology report, is there evidence of cancer? If so, please provide the
specific cancer diagnosis and the date the cancer was diagnosed.” The Form HCFA-1500. The CE completes the following portions of the
HCFA-1500 that will be sent in the package to the DMC: employee’s name, address, birth date, sex, and SSN. If the employee is deceased, the CE does
not need to fill in the address. The CE also completes section 21 of this form by entering the code V49.8 and by entering the procedure code FR001 in
section 24D. Lastly, the CE must also enter a 1 in section 24C (Type of Service) and a 1 in 24E (Diagnosis Code). (See Attachment 3)

· For the information discussed above, one copy of each must be sent to the DMC (except for Attachment 1) and one copy of each must be placed in the case file.

5. Upon receipt of the package from the CE, the Medical Scheduler compares the list of physicians provided on the District Medical Consultant Referral Form to the list of DMCs. If a DMC has already seen the claimant, the Medical Scheduler schedules the review with an alternate DMC.

6. When the Medical Scheduler receives the package from the CE, the Medical Scheduler ensures that all of the required documents listed in action number 4 above are included. The Medical Scheduler includes an express mail envelope and airbill and fills in his/her name and mailing address so that the physician can return the completed report and bill to the proper district office.

7. If the package from the CE is incomplete, the Medical Scheduler returns the package to the CE annotating the deficiencies in a memorandum placed on the front of the case file. 8. Once the package is complete and ready to forward to the DMC, the Medical Scheduler telephones the DMC and verifies that the DMC is available to perform the review. If not, the Medical Scheduler either determines when the DMC will be available or refers the package to a
different DMC.

9. Once the package is mailed to the DMC, the Medical Scheduler notifies the CE, via email, so that the CE may enter the MS status code (sent to medical consultant) into the ECMS claims status screen. The status effective date for the MS code is the date on the letter from the Medical
Scheduler to the DMC. The CE also enters the name of the DMC in the comments/notes field. 10. After entering the MS code, the CE enters a call-up note in ECMS for a 30-day follow-up on the referral. If the CE does not receive the narrative report and bill within 30 days from the date the request was mailed to the DMC, the CE notifies the Medical Scheduler. The Medical Scheduler will then follow-up with the DMC, by telephone, and obtain the date(s) of completion and mailing.

11. Upon completion of the review, the DMC completes sections 24 A, F, G; 25; 28; 30; 31; and 33 of the HCFA-1500. (See Attachment 4) The DMC returns the narrative report and the completed HCFA-1500 to the Medical Scheduler within 30 days.

12. The Medical Scheduler retains the original of the Form HCFA-1500 and a copy of the medical report and forwards the original medical report and a copy of the Form HCFA-1500 to the CE. The Medical Scheduler places a copy of the narrative report in the respective DMC folder.

13. Upon receipt of the narrative report and the copy of the HCFA-1500, the CE enters the MR status code (received back from medical consultant) into the ECMS claims status screen. The status effective date for the MR code is the date the report from the DMC is stamped “received” by the DO.

14. The CE uses the copy of the HCFA-1500 to enter the code V49.8 and the date(s) on which the DMC performed and completed the review (see item number 24A on Attachment 4). In some instances a claim may have more than one V49.8 code entered into ECMS. If the V code is not entered into ECMS, CSC will be unable to process the bill. The CE may shred the copied HCFA-1500 after the V code information is entered into ECMS.

15. The CE should take the following steps to complete the process of entering the prior approval code V49.8 into ECMS.

• The CE must first access the case update screen.
• The CE highlights any area in the “medical condition” box and presses the insert key. The next screen should have “medical condition (insert)” written at the top.
• The CE must click the down arrow in the box next to “reported ind” and change the Y to N. Tab to the next field and click on the down arrow in the “cond type” field and select “PA-Prior Approval”. Tab to the ICD 9 field and enter V49.8. Tab to the note field and enter the phrase, “Medical Records Review Conducted by Dr.{Enter the DMC’s Name}”. Tab to the “cond status” field and select “A-Accepted”. Tab to the “status effective date” and “elig end dt” fields and enter the dates listed in item 24A of the HCFA-1500.
• Save the entries and close the record.

16. The CE reviews the report for accuracy and completeness ensuring that the narrative report includes a discussion of the following:

• Interpretation of test results and medical reports submitted for review; and
• Answers to each question posed.

17. If the narrative report is accurate and complete the CE notifies the Medical Scheduler, via email, so that the Medical Scheduler may approve the bill and forward it to CSC for processing.

18. If the report is deficient or requires clarification, the CE prepares a memorandum to the DMC requesting a second review. The CE advises the DMC of the deficiencies or item(s) that require clarification and requests that the DMC review the claim again and provide an addendum report that
includes the deficient information.

19. In preparing the request for clarification, the CE must include:

• A letter to the physician describing the deficiencies and any questions to be answered;
• Copies of all the medical evidence; and
• The SOAF.

20. Upon completion of the addendum package, the CE forwards it to the Medical Scheduler who prepares and mails the package to the DMC. The CE enters the DM status code (developing medical) into the ECMS claims status screen. The status effective date for the DM code is the date on the letter/memo mailed to the DMC. The Medical Scheduler will not approve the bill until all of the proper information is received from the DMC.

21. When reviewing the completed Form HCFA-1500, the Medical Scheduler ensures that the:

• Billing hours and charges are appropriate. The maximum amount payable for a case review is $2,000.
• Claimant’s name and SSN are correct.
• The Federal tax ID number is entered (may use SSN or EIN).
• Date of service is entered.
• Form is signed by the DMC and includes his/her name and address.
• Provider number is entered in item 33

22. If all the required information is included, the Medical Scheduler approves the bill by writing “APPROVED” in the top right hand corner along with his/her signature and date. The writing must not be placed over any relevant bill information. The writing should be in black ink only, no red ink. (See Attachment 4)

23. If the Form HCFA-1500 is not approved by the Medical Scheduler, CSC will return the bill for approval. Any bills with a “V code” (i.e., V49.8), must not be mailed to CSC without the appropriate approval as described in action number 22 of this Bulletin and as shown in Attachment 4. The CE must ensure that all the information shown on Attachment 4 is entered on the bill before forwarding to CSC. In some instances, the Medical Scheduler may have to contact the DMC to
obtain the required information.

24. The Medical Scheduler forwards the approved HCFA-1500 to CSC. The mailing address for CSC is:
Energy Employees Occupational Illness Compensation Program
P.O. Box 727
Lanham-Seabrook, MD 20703-0727

25. Once CSC processes the bill, the DMC usually receives the payment within 9-14 days.

26. Any problems encountered when dealing with the DMC’s or a member of their staff should be reported to Anita Brooks at: abrooks@fenix2.dol-esa.gov. The email should include the name and number of the staff member and the DMC, the nature of the problem, any resolutions attempted, and any other relevant information.

27. If the CE receives a request from the claimant for a copy of the DMC’s report, the CE must attach a cover letter to the copied report which includes a disclaimer paragraph. For example, “Attached is a copy of the medical report that you requested. Please be advised that {Enter the DMC’s name} is a medical consultant for the Department of Labor. The Department of Labor will make the final decision in this claim. Please do not contact {Enter the DMC’s name} regarding this report. If you have additional evidence to submit in support of your claim or if you have any questions or concerns regarding this report, please contact me on {Enter the DO’s toll free number}.

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.
PETER M. TURCIC
Director, Division of Energy Employees
Occupational Illness Compensation

Attachments:
Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Hearing Representatives, District Office Mail & File Sections

District Medical Consultant Referral Form
Employee’s Name
Case No.
Two (2) copies of a STATEMENT OF ACCEPTED FACTS and QUESTIONS TO THE DMC are attached. One copy of each should be mailed to the second opinion physician and one copy retained in the claimant’s file.

The following physicians have been involved with this case.
1.

2.

3.

4.

5.

 

Medical Condition(s) Claimed:

 
 

Name and address of DMC:
 
 

X-rays attached?
□ Yes □ No
Comments:

Provide specialist with:
□ Copies of medical reports □ Other (Specify)____________________________
Signature District Office Date

 
 
 

 
{Date}
File Number: XXX-XX-XXXX
Employee: {Name}
{Dr.’s Name and Address}
Dear Dr. _____:
Thank you for your willingness to participate in the Energy Employees Occupational Illness Compensation Program (EEOICP) as a medical consultant. Your role as a medical consultant will be to evaluate the medical evidence, interpret test results and render your medical opinion.

You are ensured payment by the Office of Workers’ Compensation Programs for services rendered. The enclosed package includes a copy of all the pertinent medical evidence from the case file, a Statement of Accepted Facts (SOAF) which presents a broad history of the case, and a list of
questions to be addressed. In addition, I have enclosed an express mail envelope and airbill that you
may use to return your report and bill.

Enclosed in this package is a Form HCFA-1500 with appropriate authorization codes. This form must be used to bill for your service. You need to complete sections 24 A, F, and G; 25; 28; and 30. Please provide your signature and date in section 31. Also, provide the information for section 33,
including your Provider Number. If you have any difficulties completing the form, please contact me. Please return this form to me and be aware that the OWCP can not process payment until a report is received which addresses the particular questions being raised.

Please note that you should not release your report to the claimant or representative, but should instead refer any request for it to the DOL claims examiner.
If there are any questions or concerns, please contact me directly at the District Office on XXX-XXX-XXXX.

Sincerely,
{Medical Scheduler’s name and title}

Final Decisions of the Final Adjudication Board concerning CBD and Beryllium Sensitivity

Page 31

EEOICPA Fin. Dec. No. 12177-2002 (Dep’t of Labor, September 17, 2004)

NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch (FAB) concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch approves your claim for chronic beryllium disease.

STATEMENT OF THE CASE
On April 1, 2004, you submitted a Form EE-1 (Claim for Employee Benefits under the EEOICPA), to the Portsmouth Resource Center, based on chronic beryllium disease(CBD). You had previously submitted a claim for beryllium sensitivity on October 16, 2001. A previous recommended decision granting medical monitoring for beryllium sensitivity effective October 16, 2001, was issued by the Cleveland district office on April 24, 2002, and a prior final decision affirming this recommended decision was issued by FAB on June 11, 2002.

You also had previously submitted a Form EE-3 (Employment History) that indicated that you worked at the Rocky Flats Plant in Golden, Colorado from 1990 to 1992 and the Feed Materials Production Center (FMPC) in Fernald, Ohio from 1992 to the present. Both of these facilities are designated by the Department of Energy (DOE) as Department of Energy facilities from 1951 to present and both throughout the course of their operations had the potential for beryllium exposure at the site, due to beryllium use, residual contamination and decontamination activities. See The DOE, Office of Worker Advocacy Facility List.

On November 13, 2001, DOE verified your employment at the FMPC from June 1, 1992 to present. The DOE had no records to confirm that you were employed directly by the Rocky Flats Plant. You submitted medical records, including a lymphocyte transformation test dated August 25, 1995 that showed an abnormal response to beryllium sulfate. A medical report from Lee S. Newman, M.D., F.C.C.P., at National Jewish Medical Center and Research Center, dated February 24, 2004, described a pulmonary function test which demonstrated a progressive gas exchange abnormality which had worsened since 2002 and a CT scan of the thorax that indicated parenchymal findings consistent with chronic beryllium disease.

There is also a medical consultation from Milton D. Rossman, M.D., at the University of Pennsylvania Medical Center, dated August 1, 2004, who opined that the findings from the CT scan and the pulmonary function tests performed in February 2004 are both consistent with chronic beryllium disease. Dr. Rossman stated that the specific CT scan findings were that of nodular lesions consistent with granulomas, air trapping and evidence of ground glass abnormalities and that the specific pulmonary function test finding was that of an abnormality of the diffusion capacity.

On August 31, 2004, the Cleveland district office issued a recommended decision concluding that you are a covered beryllium employee as that term is defined by 42 USC § 7384l(7), you were exposed to beryllium in the performance of duty, pursuant to 42 U.S.C. § 7384n, and are shown to have a covered
beryllium illness shown in 42 USC § 7384l(8)(B), as you have chronic beryllium disease per the evidentiary criteria shown in 42 U.S.C. § 7384l(13). The district office further concluded that as a covered employee, you are entitled to compensation in the amount of $150,000, pursuant to 42 U.S.C.
§ 7384s(a)(1). The district office also concluded that pursuant to 42 U.S.C. § 7384s(b), you are also
entitled to medical benefits for chronic beryllium disease, effective June 11, 2002, as those benefits are described in 42 U.S.C. § 7384t.

On September 8, 2004, the Final Adjudication Branch received written notification from you,
indicating that you waive any and all rights to file objections to the recommended decision.

FINDINGS OF FACT
1. You filed a claim for employee benefits for chronic beryllium disease on April 1, 2004.

2. You were employed at the Feed Materials Production Center in Fernald, Ohio, a Department of Energy facility, from June 1, 1992 to at least November 13, 2001.

3. You are a covered beryllium employee who worked at Feed Materials Production Center in Fernald, Ohio, during a period when beryllium dust particles or vapor may have been present.

4. On February 24, 2004, you were diagnosed with chronic beryllium disease. The August 25, 1995, results of the beryllium lymphocyte proliferation test in addition to the February 2004 CT scan showing changes consistent with CBD and the February 2004 pulmonary function testing showing pulmonary deficits consistent with CBD, indicate that you have chronic beryllium disease meeting the statutory criteria for a diagnosis on or after January 1, 1993.

5. The effective date of medical benefits for the CBD is October 16, 2001, the same date as the effective date of medical benefits for the beryllium sensitivity.

CONCLUSIONS OF LAW
In order to be afforded coverage as a “covered beryllium employee,” you must show that you were exposed to beryllium while in the performance of duty while employed at a DOE, or under certain circumstances, while present at a DOE facility or a facility owned and operated by a beryllium vendor, during a period when beryllium dust, particles, or vapor may have been present at such a facility. See 42 U.S.C. §§ 7384l(7); 7384n(a). Based on your covered employment at the FMPC during a period when beryllium dust, particles or vapor may have been present, you were exposed to beryllium in the performance of duty.

In addition, there must be medical documentation of the condition in order to be eligible for benefits based on chronic beryllium disease. The requirements for diagnoses on or after January 1, 1993 are: the employee must have beryllium sensitivity [based on a positive lymphocyte proliferation test], together with lung pathology consistent with chronic beryllium disease, including—a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; a computerized axial tomography scan (CT) showing changes consistent with chronic beryllium disease; or pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease. See 42 U.S.C. § 7384l(13)(A).

The record contains the results of your BeLPT test showing an abnormal response to beryllium sulfate, and the findings from the CT scan and pulmonary function test which are consistent with a diagnosis of CBD. See 42 U.S.C. § 7384l(13)(A).

You are a “covered beryllium employee” as defined in § 7384l(7) of the Act, who was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA. See 42 U.S.C. §§ 7384l(7); 7384n(a). Further, the medical evidence shows the presence of CBD, as provided for in § 7384l(13)(A) of the Act. See 42 U.S.C. § 7384l(13)(A).

For the foregoing reasons, the undersigned hereby approves your claim for CBD. You are entitled to compensation in the amount of $150,000, pursuant to § 7384s(a) of the EEOICPA. See 42 U.S.C. §7384s(a).

The Final Adjudication Branch notes that the district office in their recommended decision concluded that you were entitled to medical benefits for CBD from June 11, 2002, the date of the Final Decision which affirmed your entitlement to medical monitoring for beryllium sensitivity. The Final Adjudication Branch finds that you are entitled to medical benefits for CBD from October 16, 2001, which is the same medical status effective date for the beryllium sensitivity. Therefore, you are entitled to reimbursement of medical expenses related to your condition of CBD, retroactive to October 16, 2001. See 42 U.S.C. § 7384t; 20 C.F.R. § 30.400(a).

Cleveland, Ohio
________________
Debra A. Benedict
Acting District Manager
Final Adjudication Branch

Page 39
EEOICPA Fin. Dec. No. 60001-2005 (Dep’t of Labor, March 25, 2005)
NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA). For the reasons set forth below, your claims for benefits are
denied.

On July 26, 2004, you each filed a claim for benefits under the EEOICPA listing beryllium sensitivity and severe lung disease as the medical conditions on which your claim is based. You stated on your employment history form (EE-3) that your father worked for Norton Company in Worchester, Massachusetts from April 10, 1943, to June 30, 1978.

With your claim you submitted various treatment records for your father that covered the time period from October 1993 to August 1998. The majority of these records showed treatment for your father’s heart failure. The earliest report is a discharge summary from the Medical Center of Central Massachusetts for the period October 20, 1993 to October 28, 1993, which indicates that your father had a history of coronary artery disease, congestive heart failure, cerebrovascular accident, and chronic obstructive pulmonary disease (COPD). A discharge summary from the Medical Center of Central Massachusetts for the period November 6, 1995 to November 7, 1995, indicates your father had shortness of breath, bilateral pleural effusions, and interstitial edema, and these findings were felt to be compatible with his congestive heart failure. A chest x-ray dated February 26, 1998, identified focal fibrosis in the right lung base. A chest x-ray dated April 9, 1998, showed bibasal infiltrates, and a small nodule in the left lung. You also submitted a copy of the employee’s death certificate showing he died on September 1, 1998, and listed his immediate cause of death as congestive heart failure, and listed
diabetes as a contributory cause of death.

On August 9, 2004, and September 10, 2004, the district office informed you that there was insufficient evidence for your claim. You were advised that your claim for beryllium sensitivity is not compensable to survivors, and that the claimed severe lung disease is not an occupational illness covered by the Act.
You were advised of the medical evidence required to establish a diagnosis of cancer and chronic beryllium disease under the Act. You were asked to provide medical evidence showing that your father had chronic beryllium disease or cancer. In each letter, the district office requested that you provide such evidence within 30 days.

On September 23, 2004, the district office received a letter from your father’s physician, Dr. Tanquay. Dr. Tanquay indicated in this statement, dated September 15, 2004, that your father had been under his care for multiple myeloma prior to his death, and that your father died from this disease on September
1, 1998.

On September 23, 2004, the district requested that Dr. Tanquay provide copies of your father’s medical reports and pathology reports that form the basis for the diagnosis of multiple myeloma. The district office requested a reply within 30 days of the letter, but no response was received.

On October 28, 2004, and November 29, 2004, the district office requested that you provide medical evidence sufficient to establish that your father had multiple myeloma. You were also advised of the district office’s attempt to obtain the records from Dr. Tanquay, and of his lack of reply. In each letter,
you were requested to submit the requested medical evidence within 30 days. There is no evidence in the file to indicate that you responded to the district office’s requests. On January 7, 2005, the district office issued a recommended decision that concluded you did not submit medical evidence sufficient to demonstrate that your father had been diagnosed with an occupational illness as defined in 42 U.S.C. § 7384l(15), specifically multiple myeloma. The
recommended decision also concluded that the claim for severe lung disease does not establish that your father is a covered employee, as this condition is not a compensable occupational illness. The recommended decision also concluded that you, as survivors, are not eligible for benefits related to
beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, it was recommended that benefits under the EEOICPA be denied.

The Department of Labor’s regulations provide that: “Within 60 days from the date the recommended decision is issued, the claimant must state, in writing, whether he or she objects to any of the findings of fact and/or conclusions of law contained in such decision, including HHS’s reconstruction of the radiation dose to which the employee was exposed (if any), and whether a hearing is desired.” See 20 C.F.R. § 30.310(a).

I find that you have not filed any objections to the recommended decision within the 60 days allowed by 20 C.F.R. § 30.310(a). Based on my review of your case record, I find that you did not provide sufficient medical evidence to establish that your father had been diagnosed with an occupational illness covered under Part B of the Act; specifically, the medical evidence submitted was not sufficient to establish a diagnosis of multiple myeloma. In addition, I find that as survivors you are not eligible for benefits related to beryllium sensitivity, as outlined under 42 U.S.C. § 7384s. Therefore, I find that you are not entitled to benefits under Part B of the Act, and that your claims for compensation must be denied.

Cleveland, OH
Debra A. Benedict
District Manager
Final Adjudication Branch

CBD, pre-1993

Page 41
EEOICPA Fin. Dec. No. 18283-2004 (Dep’t of Labor, September 17, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons stated below, this decision reverses the July 20, 2004 recommended denial of benefits, and awards lump sum compensation payment.

STATEMENT OF THE CASE
On December 28, 2001, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for prostate cancer and asbestosis. Although you did not file a claim for chronic beryllium disease(CBD), the office developed the case to include this covered condition.

On the Form EE-3, Employment History, you stated you were employed as a Pipefitter by B.F. Shaw at the Savannah River Site (SRS). Your employment was verified from August 1, 1952 to October 31, 1954 and from November 1, 1956 to December 31, 1961.

I have reviewed the medical evidence in this case and I find that it is sufficient to establish that you have chronic beryllium disease. For diagnoses before January 1, 1993, according to § 7384l(13) of the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by the presence of occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any three of the following criteria:
(1) Characteristic chest radiographic (or computed tomography (CT)) abnormalities;

(2) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;

(3) Lung pathology consistent with chronic beryllium disease;

(4) Clinical course consistent with a chronic respiratory disorder;

(5) Immunologic tests showing beryllium sensitivity.

Applying these specific statutory requirements to this case, the district office determined that the employee had over eight years of potential exposure to beryllium at the Savannah River Site. They also determined that you established criteria (2) and (4) by submitting an April 17, 1995 spirometry test, which showed mild obstruction, and a medical report showing that you had been treated for coughing and chronic bronchitis prior to 1993.

You had also submitted x-ray reports; however, the district office was unable to determine whether the x-ray results showed abnormalities characteristic of CBD. Therefore, the x-ray results were referred to the district medical consultant (DMC) for review and opinion. On October 17, 2003, the DMC opined that the chest x-ray reports were consistent with, but not classic for CBD. He further opined that the most likely etiology to explain the interstitial markings seen on the chest x-ray is asbestosis, not CBD.

The Act’s statutory requirement is that the x-ray findings only show abnormalities characteristic of CBD. Therefore the district office accepted the DMC’s opinion that the x-rays were consistent with CBD. On April 14, 2004, the district office issued a recommended decision to deny the claim for prostate cancer and asbestosis, and to award you compensation in the amount of $150,000 for chronic beryllium disease(CBD) based on the criteria for a diagnosis prior to January 1, 1993.

On June 30, 2004, the Final Adjudication Branch (FAB) issued a final decision affirming denial of the claim for prostate cancer and asbestosis. However, the FAB found that you had only met 2 of the required 3 criteria necessary to establish a diagnosis of pre-January 1, 1993 CBD. The FAB determined that the medical evidence was sufficient to meet criteria (2) and (4), as noted above, however, they found that the chest x-ray was not consistent with CBD. Therefore, the case was remanded to the district office for them to review the medical evidence and apply the criteria for CBD as set forth in the Act.

On July 20, 2004, the district office issued a recommended decision finding that you had not provided sufficient evidence to establish that you met the criteria for a diagnosis of chronic beryllium disease(CBD) as defined in 42 U.S.C. § 7384l(13). In re-evaluating the evidence of record, and without further development, the district office found that the medical evidence did not show you had a chest x-ray consistent with CBD. This meant you had only met 2 of the required 3 criteria necessary to establish a diagnosis of pre-January 1, 1993 CBD and, consequently, the claim was denied.

The issue in this case is whether the findings on chest x-ray are sufficient to meet the statutory requirement of a characteristic chest x-ray. For a pre-January 1993 diagnosis, the Act very clearly prescribes that criterion (1) is met if the chest x-ray show abnormalities characteristic of CBD. The Act does not require that abnormalities be classic for CBD.[1] The office’s medical consultant clearly opined that the x-ray findings are consistent with CBD. Therefore, I find that the chest x-ray establishes the third requirement necessary for a pre-1993 CBD diagnosis.

FINDINGS OF FACT
1. You filed a Form EE-1, Claim for Benefits under the EEOICPA, on December 28, 2001.

2. The medical evidence is sufficient to establish that you have chronic beryllium disease pursuant to § 7384l(13) of the Act. 42 U.S.C. § 7384l(13).

3. You were employed at the Savannah River Site from August 1, 1952 to October 31, 1954 and from November 1, 1956 to December 31, 1961. Beryllium was present at this facility during the time you were employed. Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in § 7384l(7) of the Act. 42 U.S.C. § 7384l(7).

4. The district office issued the recommended denial of benefits on July 20, 2004.

5. This decision reverses the July 20, 2004 recommended denial of benefits, and awards lump sum compensation payment.

CONCLUSIONS OF LAW
I find that you are a covered beryllium employee, as that term is defined in § 7384l(7) of the Act; and that your chronic beryllium disease is a covered condition under § 7384l(13) of the Act and § 30.207 of the implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13), 20 C.F.R. § 30.207. This decision reverses the July 20, 2004 recommended denial of benefits, and awards lump sum compensation payment. You are entitled to $150,000 and medical benefits, effective December 28, 2001, for chronic beryllium disease, pursuant to §§ 7384s(a) and 7384t of the EEOICPA. 42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL
James Bibeault
Hearing Representative

[1] In a policy conference call of October 29, 2003, the Branch of Policies, Regulations, and Procedures has clarified that
there is no legal difference between the terms “characteristic of” and “consistent with.”

Page 43
EEOICPA Fin. Dec. No. 50214-2005 (Dep’t of Labor, March 2, 2005)

FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amende (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. Upon a careful review of the facts and an independent review of the record, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under the Act. Accordingly, your claim for benefits is denied.

STATEMENT OF THE CASE
On October 16, 2003, you filed a Form EE-2 (Claim for Survivor Benefits under the EEOICPA) claiming benefits as the spouse of [Employee]. You identified the diagnosed condition being claimed as liver cancer (hepatocellular carcinoma). The medical documentation of record shows that your husband was diagnosed with liver cancer on September 15, 2003. Those records also show findings of cirrhosis of the liver. You also indicated that your husband was a member of the Special Exposure Cohort (SEC) based on his employment at the gaseous diffusion plant in Portsmouth, OH.

You submitted a copy of your marriage certificate which shows that you and your husband were wed on February 16, 2000. You also submitted a copy of your husband’s death certificate showing that he died on September 20, 2003, and identifying you as his surviving spouse. The death certificate shows
the cause of death as respiratory failure due to cirrhosis of the liver and cancer of the liver.

You also provided a Form EE-3 (Employment History) in which you stated that your husband worked for GAT, Lockheed Martin Marietta, and USEC from April 19, 1976, to September 20, 2003. You did not indicate the location of your husband’s employment. The Department of Energy (DOE) verified that he worked at the Portsmouth Gaseous Diffusion Plant (GDP) from April 19, 1976, to September 20, 2003. The Portsmouth GDP is recognized as a covered DOE facility from 1954 to July 28, 1998; from July 29, 1998 to the present for remediation; and from May 2001 to the present in cold standby status. See DOE, Office of Worker Advocacy, Facility List.

To determine the probability of whether your husband sustained cancer in the performance of duty, the Cleveland district office referred your claim to the National Institute for Occupational Safety and Health (NIOSH) for radiation dose reconstruction in accordance with 20 C.F.R. § 30.115. On November 29, 2004, you signed Form OCAS-1, indicating that you had reviewed the NIOSH Draft Report of Dose Reconstruction and agreeing that it identified all of the relevant information provided to NIOSH. On December 9, 2004, the district office received the final NIOSH Report of Dose Reconstruction. Using the information provided in this report, the district office utilized the Interactive RadioEpidemiological Program (IREP) to determine the probability of causation of your husband’s cancer and reported in its recommended decision that there was a 42.16% probability that liver cancer
was caused by radiation exposure at the Portsmouth GDP.

On December 20, 2004, the Cleveland district office recommended denial of your claim for compensation finding that the employee’s cancer was not “at least as likely as not” (a 50% or greater probability) caused by radiation doses incurred while employed at the Portsmouth GDP. The district office concluded that the dose reconstruction estimates were performed in accordance with 42 U.S.C. § 7384n(d). Further, the district office concluded that the probability of causation was completed in accordance with 42 U.S.C. § 7384n(c)(3). The district office also concluded that your husband does not qualify as a covered employee with cancer as defined in 42 U.S.C. § 7384l(9)(B). The district office noted that your husband’s liver cancer cannot be a “specified cancer” because cirrhosis is also indicated by the evidence of record. Lastly, the district office concluded that you are not entitled to compensation, as outlined under 42 U.S.C. § 7384s.

FINDINGS OF FACT
1. You filed a claim for benefits on October 16, 2003.

2. Your husband worked at Portsmouth GDP, a covered DOE facility, from April 19, 1976, to September 20, 2003.

3. Your husband was diagnosed with liver cancer on September 15, 2003. The medical evidence also indicated findings of cirrhosis.

4. The NIOSH Interactive RadioEpidemiological Program indicated a 42.16% probability that your husband’s liver cancer was caused by radiation exposure at the Portsmouth GDP.

5. Your husband’s cancer was not at least as likely as not related to his employment at a DOE facility

6. You are the surviving spouse of [Employee] and were married to him for at least one year immediately prior to his death.

CONCLUSIONS OF LAW

I have reviewed the recommended decision issued by the Cleveland district office on December 20, 2004. I find that you have not filed any objections to the recommended decision and that the sixty-day period for filing such objections has expired. See 20 C.F.R. §§ 30.310(a), 30.316(a).

You filed a claim based on liver cancer. Under the EEOICPA, a claim for cancer must be demonstrated by medical evidence that sets forth the diagnosis of cancer and the date on which the diagnosis was made. See 20 C.F.R. § 30.211. Additionally, in order to be afforded coverage as a “covered employee with cancer,” you must show that your husband was a DOE employee, a DOE contractor employee, or an atomic weapons employee, who contracted cancer after beginning employment at a DOE facility or an atomic weapons employer facility. See 42 U.S.C. § 7384l(9). The cancer must also be determined to have been sustained in the performance of duty, i.e., at least as likely as not related to employment at a DOE facility or atomic weapons employer facility. See 42 U.S.C. § 7384n(b).

Using the information provided in the Report of Dose Reconstruction for liver cancer, the district office utilized the NIOSH Interactive RadioEpidemiological Program to determine a 42.16% probability that your husband’s cancer was caused by radiation exposure while employed at the Portsmouth GDP. The Final Adjudication Branch (FAB) also analyzed the information in the NIOSH report, confirming the 42.16% probability.

You also claimed entitlement to compensation due to your husband’s status as a member of the SEC. The FAB finds that the medical evidence of record indicates the presence of cirrhosis of the liver. Based on that finding, your husband’s liver cancer cannot be considered a “specified cancer” as defined by 42 U.S.C. § 7384l(17)(A). For that reason, although your husband’s employment is sufficient to establish that he is a member of the SEC, he cannot be considered to be a covered employee with cancer as defined by 42 U.S.C. § 7384l(9)(A).

Therefore, your claim must be denied because the evidence does not establish that your husband is a “covered employee with cancer,” because his cancer was not determined to be “at least as likely as not” (a 50% or greater probability) related to radiation doses incurred in the performance of duty at the
Portsmouth GDP. Additionally, the evidence does not establish that your husband is a “covered employee with cancer,” based on SEC membership and liver cancer, because cirrhosis is indicated by the medical evidence of record. See 42 U.S.C. § 7384l(1)(B), (9)(A) and (B), and (17)(A).

For the above reasons, the Final Adjudication Branch concludes that the evidence of record is insufficient to allow compensation under Part B of the Act. Accordingly, your claim for benefits is denied.

Cleveland, OH
Tracy Smart
Acting FAB Manager
Final Adjudication Branch

page 46
EEOICPA Fin. Dec. No. 56382-2004 (Dep’t of Labor, November 18, 2004)

NOTICE OF FINAL DECISION
This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claims are accepted. [1]

STATEMENT OF THE CASE
On April 8, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 20, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 21, 2004, [Claimant 3] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 21, 2004, [Claimant 4] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.

The claims were based, in part, on the assertion that your late father was an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Forms EE-2 that you were filing for the employee’s COPD. On the Form EE-3, Employment History, you stated the employee was employed by the K-25 gaseous diffusion plant (GDP) at Oak Ridge, Tennessee, for the period of July 7, 1944 through February 15, 1946. On April 13, 2004, the Jacksonville district office verified this employment using information from the Oak Ridge Institute for Science and Education website
database.

The district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease(CBD). On October 15, 2004, the Jacksonville district office issued a decision recommending that you, as eligible survivors of the employee, are entitled to compensation in
the amount of $37,500 each, for the employee’s chronic beryllium disease.

You each submitted written notification that you waive any and all objections to the recommended decision. I have reviewed the medical evidence and find that it is sufficient to establish that the employee had chronic beryllium disease. According to § 7384l(13) of the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by the following:

(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with
paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

• (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
• (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
• (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B) For diagnoses before January 1, 1993, the presence of—

• (i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
• (ii)any three of the following criteria:
• (I) Characteristic chest radiographic (or computed tomography (CT) abnormalities;
• (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
• (III) Lung pathology consistent with chronic beryllium disease;
• (IV) Clinical course consistent with a chronic respiratory disorder;
• (V) Immunologic tests showing beryllium sensitivity.

42 U.S.C. § 7384l(13).

The employee died on June 19, 1988. Since all medical evidence in the case file is prior to January 1, 1993, the criteria in § 7384l(13)(B) of the Act are used. The employee is shown to have had an occupational exposure to beryllium during his verified period of employment at the K-25 GDP. Three of the five criteria necessary to establish pre-1993 CBD have also been met: the various chest x-ray reports, dated between September 16, 1974 and May 8, 1983, show opacities which establish that the employee had characteristic chest x-ray abnormalities; the September 16, 1974 pulmonary function test by Dr. Domm, establishes that the employee had an obstructive lung physiology test; and the November 28, 1978 medical report by Dr. William K. Swann, providing a history of seven years of respiratory problems, establishes that the employee had a clinical course consistent with a chronic respiratory condition. Therefore, the criteria for a diagnosis of CBD under the EEOICPA have been met.

FINDINGS OF FACT

1. On April 8, 2004, [Claimant 1] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 20, 2004, [Claimant 2] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 21, 2004, [Claimant 3] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.
On April 21, 2004, [Claimant 4] filed a Form EE-2, Claim for Survivor Benefits under the EEOICPA.

2. The medical evidence is sufficient to establish that the employee had chronic beryllium disease pursuant to the Act. 42 U.S.C. § 7384l(13).

3. The employee was employed at the K-25 gaseous diffusion plant in Oak Ridge, TN for the period of July 7, 1944 through February 15, 1946. Beryllium was present at this facility during the time of employment. Due to this exposure to beryllium in the performance of duty, the employee meets the criteria of a covered beryllium employee as defined in the Act. 42 U.S.C. § 7384l(7).

4. In proof of survivorship, you submitted copies of birth certificates, documentation of name changes, and death certificates of the employee and the employee’s spouse. Therefore, you have established that you are survivors as defined by the implementing regulations. 20 C.F.R. § 30.5(ee).

5. The district office issued the recommended decision on October 15, 2004.

6. You each submitted written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW
I have reviewed the record on this claim and the recommended decision issued by the district office on October 15, 2004. I find that the employee is a covered beryllium employee, as that term is defined in the Act; and that the employee’s chronic beryllium disease is a covered condition under the Act and
implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13);

20 C.F.R. § 30.207.

I find that the recommended decision is in accordance with the facts and the law in this case, and that you, as eligible survivors of the employee as defined by the Act, are each entitled to one fourth of the maximum $150,000 award, in the amount of $37,500 each, pursuant to the Act on the basis of the employee’s chronic beryllium disease. 42 U.S.C. §§ 7384s(e)(1)(B), 7384s(a).

Jacksonville, FL
J. Mark Nolan
Hearing Representative
[1] This is the second decision by the Final Adjudication Branch. On September 17, 2004, the case was
remanded to the Jacksonville district office for additional development to establish that all claimants
were eligible survivors.

page 48
EEOICPA Fin. Dec. No. 59062-2004 (Dep’t of Labor, September 13, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claims for compensation under the Energy Employees Occupational Illness Compensation Program Act (EEOICPA or the Act). See 42 U.S.C. § 7384 et seq. For the reasons set forth below, the Final Adjudication Branch accepts and approves your claims for survivor compensation for the condition of chronic beryllium disease.

STATEMENT OF THE CASE
On June 2, 2003, the employee filed a claim for compensation under the EEOICPA based on asbestosis and other lung condition. That claim was recommended for denial by the Seattle district office; however, additional medical documentation was received by the Final Adjudication Branch, who vacated the recommended decision by Remand Order dated September 8, 2003. The district office performed additional development of the medical evidence and recommended acceptance of the claim and medical benefits for chronic beryllium disease and denial of the claim for asbestosis, which was affirmed by Final Decision of the Final Adjudication Branch on July 6, 2004. Before payment could be issued, however, the employee passed away on June 12, 2004, and the claim was administratively closed. On June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004, you filed claims for survivor benefits under the EEOICPA based on chronic beryllium disease (CBD). A Form EE-3 (Employment History) previously filed by the employee indicated he worked at the Idaho National Environmental and Engineering Laboratory (INEEL) for Keiser Construction from January 1, 1954 to August 30, 1954 and for Phillips Petroleum, Idaho Nuclear, Aerojet General, and EG&G Idaho from October 1, 1954 to March 1, 1992. A representative of the Department of Energy (DOE) verified
the worker’s employment at INEEL from October 7, 1957 to March 2, 1992. INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and
decontamination activities. See DOE, Office of Worker Advocacy, Facility List.

Medical evidence of record includes a chest x-ray and a CT scan, both dated October 13, 1992, that indicated the employee had multiple pleural plaques, and a chest x-ray, dated May 1, 2002, that indicated emphysematous changes within his lungs, densely calcified pleural plaques on the left lung, and scarring and associated bullous changes within the right lung base. In addition, the record includes a history of a clinical course of treatment of the employee for asbestosis and chronic obstructive pulmonary disease (COPD) dating from October 1992 to March 2003. The employee’s pulmonary function test results, from October 13, 1992, showed an FVC of 3.62 and an FEV1 of 1.57, with an FEV1/FVC ratio of 43% before bronchodilators, and an FVC of 4.6 and FEV1 of 1.59 after bronchodilators. The employee’s DLCO was markedly diminished at 11.77 or 35% of predicted.

District Medical Consultant Robert E. Sandblom, M.D., reviewed the employee’s medical records, in a report dated January 5, 2004, and indicated the claimant had chest radiographic (or CT) abnormalities characteristic of CBD, restrictive or obstructive lung physiology testing or diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder.

You provided copies of your birth certificates that indicate each of you is the natural child of the employee, and copies of the certificates of marriage of [Claimant 1] and [Claimant 4] documenting your name changes. The file also contains a copy of the employee’s certificate of death that indicates
the employee was widowed when he passed away on June 12, 2004.

The Seattle district office determined that the employee was a covered beryllium employee as defined in § 7384l(7) of the EEOICPA. See 42 U.S.C. § 7384l(7). Further, the Seattle district office determined that the evidence submitted meets the criteria necessary to establish a diagnosis of chronic beryllium disease as defined by § 7384l(13), a covered occupational illness as defined by § 7384l(8)(B). See 42 U.S.C. § 7384l(8)(B) and (13). Also, the district office determined that you are the survivors of the employee, as defined by § 7384s(e)(3), and that you are entitled to compensation in the amount of $37,500.00 each pursuant to §§ 7384s(a)(1) and (e)(1) of the EEOICPA. See 42 U.S.C. § §7384s(a)(1) and (e)(1). In addition, the district office concluded that you are entitled to reimbursement of medical expenses for the employee’s chronic beryllium disease, retroactive to the date he filed his claim, June 2, 2003, through June 12, 2004, the date he passed away.

FINDINGS OF FACT

1. The employee filed a claim for asbestosis and other lung condition, on June 2, 2003.

2. You filed claims for survivor benefits for chronic beryllium disease on June 25 ([Claimant 1, Claimant 2, and Claimant 3]) and June 28 ([Claimant 4]), 2004.

3. The employee was employed at INEEL, a covered DOE facility, from October 7, 1957 to March 2, 1992.

4. INEEL is recognized as a covered DOE facility, from 1949 to the present, where the potential for beryllium exposure existed throughout the course of its operations because of beryllium use, residual contamination, and decontamination activities.

5. The employee is a covered beryllium employee who worked at INEEL during a period when beryllium dust, particles or vapor may have been present.

6. The findings in the medical evidence are consistent with a diagnosis of chronic beryllium disease based on the statutory criteria for a diagnosis before January 1, 1993.

7. The onset of the employee’s chronic beryllium disease on October 13, 1992, occurred after his exposure to beryllium in the performance of duty.

8. The employee passed away on June 12, 2004, and was not survived by a spouse.

9. You are the natural children and survivors of the employee.

CONCLUSIONS OF LAW

On August 20 ([Claimant 4]), August 23 ([Claimant 2 and Claimant 1]), and September 1 ([Claimant 3]), 2004, the Final Adjudication Branch received your written notifications that you waive any and all rights to file objections to the recommended decision. In order to be afforded coverage under § 7384n(a) of the EEOICPA as a “covered beryllium employee,” the employee must have worked for a beryllium vendor and sustained occupational
exposure to beryllium while:

(1) employed at a Department of Energy facility; or

(2) present at Department of Energy facility, or a facility owned and operated by a beryllium vendor, because of employment by the United States, a beryllium vendor, or a contractor or subcontractor of the Department of Energy;

during a period when beryllium dust, particles, or vapor may have been present at such a facility. Further, the requisite exposure must be shown to have been “in the performance of duty,” which is presumed, absent substantial evidence to the contrary. See 42 U.S.C. § 7384n(a); 20 C.F.R. §
30.205(1), (2) and (3).

In addition, there must be medical documentation of the condition in order to be eligible for survivor’s benefits based on chronic beryllium disease:
(B) For diagnoses before January 1, 1993, the presence of—

• (i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
• (ii) any three of the following criteria:
• (I) Characteristic chest radiograph (or computed tomography (CT)) abnormalities.
• (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
• (III) Lung pathology consistent with chronic beryllium disease.
• (IV) Clinical course consistent with chronic respiratory disorder.
• (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

See 42 U.S.C. § 7384l(13)(B). Based on the employee’s covered employment at a DOE facility, he was exposed to beryllium in the performance of duty. See 42 U.S.C. § 7384n(a).
The record contains medical evidence to show a diagnosis of CBD. Medical reports include a chest x-ray and a CT scan that are characteristic of chronic beryllium disease showing that the employee had multiple pleural plaques. The employee also had an abnormal pulmonary function test, and he was
treated for lung disease over a period of years. A review of the employee’s medical records by District Medical Consultant Robert E. Sandblom, M.D., dated January 5, 2004, indicated the claimant had abnormal chest radiographs characteristic of CBD, restrictive or obstructive lung physiology testing or
diffusing lung capacity defect, and a clinical course consistent with a chronic respiratory disorder. This evidence satisfies a required three of five criteria for a diagnosis of chronic beryllium disease before January 1, 1993. See 42 U.S.C. § 7384l(13)(B). The medical evidence indicates that a diagnosis of chronic beryllium disease existed at least by October 13, 1992. Consequently, the Final Adjudication Branch has determined that sufficient evidence of record exists to accept your claims for chronic beryllium disease based on the statutory criteria for a diagnosis of chronic beryllium disease before
January 1, 1993.

The record includes copies of each of your birth certificates indicating you are each a natural child of the employee, documentation showing the legal change of names of [Claimant 1] and [Claimant 4], and a copy of the employee’s death certificate that indicates he was widowed at the time of his death.

The employee was a “covered beryllium employee” as defined in § 7384l(7) of the Act, and was exposed to beryllium in the performance of duty as defined in § 7384n(a) of the EEOICPA. See 42 U.S.C. §§ 7384l(7); 7384n(a). Further, the medical evidence shows the presence of chronic beryllium disease, as provided for in § 7384l(13)(B) of the Act. See 42 U.S.C. § 7384l(13)(B).

For the foregoing reasons, the undersigned hereby accepts your claims for chronic beryllium disease. You are each entitled to compensation in the amount of $37,500.00 pursuant to § 7384s(e)(A) of the Act. See 42 U.S.C. § 7384s(e)(A). Further, you are entitled to reimbursement of medical expenses the employee may have incurred, retroactive to the date of his application on June 2, 2003, for the condition of chronic beryllium disease. See 42 U.S.C. § 7384t.

Seattle, Washington
James T. Carender
Hearing Representative, Final Adjudication Branch

page 52
EEOICPA Fin. Dec. No. 57973-2005 (Dep’t of Labor, January 7, 2005)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). This decision affirms the recommended acceptance issued on November 30, 2004.

STATEMENT OF THE CASE

On May 28, 2004, you filed a claim for survivor benefits, as the widow of [Employee], Form EE-2, under Part B of the EEOICPA. You identified ‘breathing problems” and chronic beryllium disease(CBD) as the claimed conditions. You also filed a Form EE-3 indicating that your husband was employed by F.H. McGraw at the Paducah Gaseous Diffusion Plant in Paducah, Kentucky from 1951 to “I don’t remember.” The Department of Energy (DOE) was unable to verify employment, however, they did confirm that F.H. McGraw held a number of contracts, during this time, at the Paducah Site. You submitted Social Security records indicating that your husband was employed by F.H. McGraw from the fourth quarter of 1951 to the third quarter of 1954. Social Security reported maximum reportable earnings ($3600.00) for 1952, 1953 and 1954. The DOE also submitted a “Personnel Clearance Master Card” from F.H. McGraw and Company that indicated [Employee] was terminated on December 17, 1954 due to a reduction in force; this notice also indicated that a Q Clearance was granted on February 14, 1952.[1]

Based upon the DOE response that F.H. McGraw held a number of contracts from 1951 to 1954 and the security Q clearance notification, the district concluded that the DOE had a business or contractual arrangement with F.H. McGraw. The district office further concluded that your husband worked with F.H. McGraw at the Paducah Gaseous Diffusion Plant for at least one day on December 17, 1954 based upon the reduction in force notice.[2]

The death certificate submitted showed that [Employee] died on October 12, 1999, and the immediate cause of death as congestive heart disease. The death certificate indicated that the surviving spouse was [Claimant]. You submitted a marriage certificate showing that [Employee] and [Claimant] were
married on March 23, 1940.

You submitted a medical report dated February 23, 1991, from Lowell F. Roberts, M.D., which indicates a history of chronic obstructive pulmonary disease (COPD), shortness of breath, and dyspnea. A February 23, 1991 X-ray report, from D.R. Hatfield, M.D., indicates a diagnosis of COPD. A February 25, 1991 CT-scan, from Barry F. Riggs, M.D., indicates abnormal nodular densities of the right lower lobe and a diagnosis of COPD. A February 26, 1991 medical report from M.Y. Jarfar, M.D. indicated that pulmonary function tests showed mild obstructive defects and mild diffusing lung capacity defects. You also submitted an X-ray report dated September 6, 1994, from Robert A. Garneau, M.D., that indicated diagnoses of COPD and Interstitial Fibrosis. A November 27, 1994 medical report from David Saxon, M.D., indicated findings of rales and wheezing. A December 2, 1994 medical report from Dr. Saxon, indicates hypoxemia to the left lower lung. A December 2, 1994 medical report from Lowell F. Roberts, M.D., indicated diagnoses of shortness of breath, congestive heart failure, dyspnea and cough, and rales in the lung base. An August 13, 1995 X-ray report from Charles Bea, M.D., indicates a diagnoses of bibasilar infiltrates. A December 30, 1996 X-ray report from Sharron Butler, M.D., indicates an increase of lung markings since the September 14, 1992 study. In the March 1, 1998 X-ray report from Dr. Butler diagnoses of “advanced chronic lung changes, mild interstitial prominence diffusely, and patch density of the posterior right lung” are indicated. An August 19, 1998 CT-scan from James D. Van Hoose, indicates diagnoses of pleural thickening and pulmonary calcifications. An August 6, 1999 pulmonary function test from William Culberson, M.D. indicates a diagnosis of moderately severe restrictive disease. An October 12, 1999 discharge summary from Eric B. Scowden, M.D. indicates diagnoses of progressive shortness of breath, congestive heart disease, COPD, and history of right-sided empyema complicating pneumonia necessitating prolonged chest tube drainage with a continued open sinus tract.” Based upon these reports the district office concluded that you had CBD prior to January 1, 1993.[3]

On November 30, 2004, the district office issued a recommended decision concluding that your husband was a covered beryllium employee, that he was exposed to beryllium, and that he had symptoms and a clinical history similar to CBD prior to January 1, 1993. They further concluded that you are entitled to compensation in the amount of $150,000 pursuant to § 7384s of the EEOICPA.

Section 30.316(a) of the EEOICPA implementing regulations provides that, “if the claimant does not file a written statement that objects to the recommended decision and/or requests a hearing within the period of time allotted in 20 C.F.R. § 30.310, or if the claimant waives any objection to all or part of the recommended decision, the Final Adjudication Branch (FAB) will issue a decision accepting the recommendation of the district office, either whole or in part.” 20 C.F.R. § 30.316(a). On December 1, 2004, the FAB received your signed waiver of any and all objections to the recommended decision. After considering the evidence of record, your waiver of objection, and the NIOSH report, the FAB hereby makes the following:

FINDINGS OF FACT

1. You filed a claim for benefits under Part B of the EEOICPA on May 28, 2004.

2. Your husband was employed at the Paducah Gaseous Diffusion Plant for at least one day on December 17, 1954.

3. Medical evidence has been submitted establishing a diagnosis of chronic beryllium disease before January 1, 1993.

4. You were married to the employee from March 23, 1940, until his death on October 12, 1999.

Based on these facts, the undersigned makes the following:

CONCLUSIONS OF LAW

Section 7384s of the Act provides for the payment of benefits to a covered employee, or his survivor, with an “occupational illness,” which is defined in § 7384l(15) of the EEOICPA as “a covered beryllium illness, cancer. . .or chronic silicosis, as the case may be.” 42 U.S.C. §§ 7384l(15) and 7384s. 42 U.S.C. § 7384l.

Pursuant to § 7384l(13)(B) of the EEOICPA, to establish a diagnosis of CBD before January 1, 1993, the employee must have had “an occupational or environmental history, or epidemiologic evidenceberyllium exposure; and (iii) any three of the following criteria: (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities. (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect. (III) Lung pathology consistent with chronic beryllium disease. (IV) Clinical course consistent with a chronic respiratory disorder. (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).” 42 U.S.C. § 7384l(13)(B).

The evidence of record establishes that the employee was a covered beryllium employee who had at least three of the five necessary medical criteria to establish pre-1993 CBD under the EEOICPA. Therefore, you have provided sufficient evidence to establish that your husband was diagnosed with
pre-1993 CBD, pursuant to § 7384l(13)(B) of the EEOICPA.

The undersigned has reviewed the facts and the district office’s November 30, 2004 recommended decision and finds that you are entitled to $150,000 in compensation.

The decision on the claim that you filed under Part E of the EEOICPA is being deferred until issuance of the Interim Final Regulations.

Washington, DC
Tom Daugherty
Hearing Representative
Final Adjudication Branch

[1] The Paducah Gaseous Diffusion Plant was a DOE facility from 1952 to July 28, 1998 and July 29, 1998 to present (remediation) where radioactive and beryllium material were present, according to the Department of Energy Office of Worker Advocacy Facility List (http://www.hss.energy.gov/HealthSafety/FWSP/Advocacy/faclist/findfacility.cfm).

[2] Per Chapter 2-100.3h (January 2002) of the Federal (EEOICPA) Procedure Manual, “The OWCP may receive evidence from other sources such as other state and federal agencies” to support a claim under the EEOICPA.

[3] Per Chapter 2-700.4 (September 2004) of the Federal (EEOICPA) Procedure Manual, “To determine whether to use the Pre or Post 1993 CBD criteria, the medical evidence must demonstrate that the employee was either treated for, tested or diagnosed with a chronic respiratory disorder. If the earliest dated document is prior to January 1, 1993, the pre-1993 CBD criteria may be used. Once it is established that the employee had a chronic respiratory disorder prior to 1993, the CE is not limited to use of medical reports prior to 1993 to meet the three of five criteria.”

page 54

CBD, 1993 forward

EEOICPA Fin. Dec. No. 30568-2005 (Dep’t of Labor, September 16, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000. 42 U.S.C. § 7384 et seq. Since your attorney-in-fact submitted a letter of objection, but did not specifically request a hearing,review of the written record was performed, in accordance with the implementing regulations. 20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objectionsthe decision, in accordance with the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional
evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.
a to For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease(CBD) and removal of lung in 1958. On the Form EE-3, Employment History, you stated you were employed in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant with Maxon Construction as an ironworker from 1950/51 to 1954; at the Y-12 plant as a machinist from December 1954 to mid-1955; and at the Oak Ridge National Laboratory (X-10) as a chemical operator from mid 1955 to June 1982. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

On December 2, 2004, the Jacksonville district office recommended acceptance of the claim for CBD based on the statutory criteria for a pre-1993 diagnosis and recommended denial of the claimed emphysema. On January 3, 2005, the Final Adjudication Branch (FAB) issued a remand order, which returned the case to the district office for further development.

In accordance with the remand order, the district office obtained a copy of a lymphocyte proliferation test (LPT) verbally reported to have been normal, and forwarded the evidence of record to a district medical consultant for an opinion whether a finding of pulmonary fibrosis was a characteristic
abnormality of CBD on a chest x-ray.

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act. 42 U.S.C. § 7384l(7). Due to confirmation of your employment in a facility where beryllium was present, you are considered to be a “covered beryllium employee.” However, in order for you to receive compensation, you must be diagnosed with a covered beryllium illness, in accordance with § 7384 of the Act and implementing regulations. 42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205. “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease. 42 U.S.C. § 7384l(8).

According to § 7384 of the Act, chronic beryllium disease is established by the following:
(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

• (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
• (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
• (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B) For diagnoses before January 1, 1993, the presence of—

• (i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
• (iii) any three of the following criteria:
• (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.
• (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
• (III) Lung pathology consistent with chronic beryllium disease.
• (IV) Clinical course consistent with a chronic respiratory disorder.
• (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).

42 U.S.C. § 7384l(13).

On April 29, 2005, the district office received a copy of the lymphocyte proliferation test conducted on January 23, 2003, which contained a finding of a normal response to beryllium sulfate. In light of the report from your physician stating that your steroid use could affect the outcome of the testing, the district office noted that the only situation where a normal LPT could be overridden for acceptance of a post-1993 CBD diagnosis was when a lung tissue biopsy revealed the presence of granulomas consistent with CBD. The lung biopsy on file, from 1958, did not include a finding of granulomas.

Therefore, the claim was also considered under the pre-1993 criteria. The evidence consisted of x-rays denoting abnormalities, obstructive lung physiology testing, and a medical history showing a clinical course consistent with a chronic respiratory condition. However, the chest x-rays which revealed abnormalities were referred to a district medical consultant (DMC), in accordance with policy, to determine if they were characteristic of CBD. In his report of

March 26, 2005, Dr. Robert Sandblom opined that the x-ray reports on file did not show any abnormalities consistent with CBD.

On May 9, 2005, the Jacksonville district office issued a recommended decision to deny the claim for CBD, emphysema, and a lung abscess, since there was insufficient medical evidence to establish a diagnosis of a covered occupational illness under § 7384 of the Act. 42 U.S.C. § 7384l(15).

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. These 60 days expired on July 8, 2005. On July 5, 2005, the Final Adjudication Branch received a letter of objection, dated June 30, 2005, from your attorney-in-fact.

OBJECTIONS

In the objection letter, the attorney-in-fact stated that she disagreed with the office procedures which allowed pulmonary fibrosis to be considered characteristic and then not characteristic. She stated that changes such as this should not be implemented in a retroactive manner, since the clarifications of
policy appeared to be more restrictive in order to deny claims. She questioned whether the LPT on record would be investigated further since your physician said that your steroid use could alter the results. She said a phone call to the FAB had not been returned; however, there are no records of any
telephone calls after the recommended decision was issued.

The district office and Final Adjudication Branch are bound by the policies and procedures in place at the time a claim is adjudicated and are required to review such a claim in light of those current policies. The issue for determination is whether the chest x-rays meet the pre-1993 criteria for a statutory diagnosis of CBD. Since Dr. Sandblom did not specifically mention the chest x-ray report of February 13, 1967 (which the district office used as support for their recommended acceptance in the original decision) in his earlier response, the Final Adjudication Branch requested clarification. In an addendum dated September 15, 2005, Dr. Sandblom explained that the pulmonary fibrosis noted in February 1967 was due to localized scarring “consistent with the prior lobectomy for lung abscess” and stated that “these changes are definitely not consistent with CBD.”

Furthermore, the procedures address the use of a normal LPT in a living claimant: a lung biopsy that confirms the presence of granulomas may override a normal LPT. The district office thoroughly addressed this requirement in the recommended decision, as discussed above. Telephone records in the case file indicate a test kit was to be forwarded to you in May by ORISE. The results of that testing have not been received.

FINDINGS OF FACT

1. On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease(CBD) and removal of lung in 1958

2. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

3. The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

4. On May 9, 2005, the Jacksonville district office issued a recommended decision to deny compensation and medical benefits for chronic beryllium disease, emphysema, and a lung abscess.

5. On July 5, 2005, the Final Adjudication Branch received a letter of objection from your attorney-in-fact, dated June 30, 2005, and conducted a review of the written record. The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW

The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on May 9, 2005, and finds that the evidence submitted does not establish that you meet the statutory criteria for a diagnosis of chronic beryllium disease, as defined in the Act, or any other
covered occupational illness, as defined in the Act and implementing regulations. 42 U.S.C. §§ 7384l(13), 7384l(15), 20 C.F.R. § 30.5(z). I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections submitted. As explained in
the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). Therefore, I find that you are not entitled to compensation or medical benefits under the Act, and that your claim for
compensation must be denied.

Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative

page 58
EEOICPA Fin. Dec. No. 30568-2005 (Dep’t of Labor, September 16, 2005)

FINAL DECISION FOLLOWING A REVIEW OF THE WRITTEN RECORD

This is a decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000. 42 U.S.C. § 7384 et seq. Since your attorney-in-fact submitted a letter of objection, but did not specifically request a hearing, a
review of the written record was performed, in accordance with the implementing regulations. 20 C.F.R. § 30.312.

A claimant who receives a recommended denial from the district office is entitled to file objections to the decision, in accordance with the implementing regulations. 20 C.F.R. § 30.310. In reviewing any objections submitted, the Final Adjudication Branch will review the written record, any additional
evidence or argument submitted by the claimant, and conduct any additional investigation determined to be warranted in the case. 20 C.F.R. § 30.313.

For the reasons set forth below, your claim is denied.

STATEMENT OF THE CASE

On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease(CBD) and removal of lung in 1958. On the Form EE-3, Employment History, you stated you were employed in Oak Ridge, Tennessee, at the K-25 gaseous diffusion plant with Maxon Construction as an ironworker from 1950/51 to 1954; at the Y-12 plant as a machinist from December 1954 to mid-1955; and at the Oak Ridge National Laboratory (X-10) as a chemical operator from mid 1955 to June 1982. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

On December 2, 2004, the Jacksonville district office recommended acceptance of the claim for CBD based on the statutory criteria for a pre-1993 diagnosis and recommended denial of the claimed emphysema. On January 3, 2005, the Final Adjudication Branch (FAB) issued a remand order, which returned the case to the district office for further development.

In accordance with the remand order, the district office obtained a copy of a lymphocyte proliferation test (LPT) verbally reported to have been normal, and forwarded the evidence of record to a district medical consultant for an opinion whether a finding of pulmonary fibrosis was a characteristic
abnormality of CBD on a chest x-ray.

A person exposed to beryllium during the course of employment in specified facilities qualifies as a “covered beryllium employee,” as defined in the Act. 42 U.S.C. § 7384l(7). Due to confirmation of your employment in a facility where beryllium was present, you are considered to be a “covered beryllium employee.” However, in order for you to receive compensation, you must be diagnosed with a covered beryllium illness, in accordance with § 7384 of the Act and implementing regulations. 42 U.S.C. § 7384l(8), 20 C.F.R. § 30.205. “Covered beryllium illness” is defined in the Act as beryllium sensitivity as established by an abnormal beryllium lymphocyte proliferation test (LPT) performed on either blood or lung lavage cells or established chronic beryllium disease. 42 U.S.C. § 7384l(8).

According to § 7384 of the Act, chronic beryllium disease is established by the following:

(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

• (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
• (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
• (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B) For diagnoses before January 1, 1993, the presence of—

• (i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
• (iii) any three of the following criteria:
• (I) Characteristic chest radiographic (or computed tomography (CT)) abnormalities.
• (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect.
• (III) Lung pathology consistent with chronic beryllium disease.
• (IV) Clinical course consistent with a chronic respiratory disorder.
• (V) Immunologic tests showing beryllium sensitivity (skin patch test or beryllium blood test preferred).
• 42 U.S.C. § 7384l(13).

On April 29, 2005, the district office received a copy of the lymphocyte proliferation test conducted on January 23, 2003, which contained a finding of a normal response to beryllium sulfate. In light of the report from your physician stating that your steroid use could affect the outcome of the testing, the district office noted that the only situation where a normal LPT could be overridden for acceptance of a post-1993 CBD diagnosis was when a lung tissue biopsy revealed the presence of granulomas consistent with CBD. The lung biopsy on file, from 1958, did not include a finding of granulomas.

Therefore, the claim was also considered under the pre-1993 criteria. The evidence consisted of x-rays denoting abnormalities, obstructive lung physiology testing, and a medical history showing a clinical course consistent with a chronic respiratory condition. However, the chest x-rays which revealed abnormalities were referred to a district medical consultant (DMC), in accordance with policy, to determine if they were characteristic of CBD. In his report of

March 26, 2005, Dr. Robert Sandblom opined that the x-ray reports on file did not show any abnormalities consistent with CBD.

On May 9, 2005, the Jacksonville district office issued a recommended decision to deny the claim for CBD, emphysema, and a lung abscess, since there was insufficient medical evidence to establish a diagnosis of a covered occupational illness under § 7384 of the Act.
42 U.S.C. § 7384l(15).

Attached to the recommended decision was a notice of claimant rights, which stated that you had 60 days in which to file an objection to the recommended decision and/or request a hearing. These 60 days expired on July 8, 2005. On July 5, 2005, the Final Adjudication Branch received a letter of objection, dated June 30, 2005, from your attorney-in-fact.

OBJECTIONS

In the objection letter, the attorney-in-fact stated that she disagreed with the office procedures which allowed pulmonary fibrosis to be considered characteristic and then not characteristic. She stated that changes such as this should not be implemented in a retroactive manner, since the clarifications of policy appeared to be more restrictive in order to deny claims. She questioned whether the LPT on record would be investigated further since your physician said that your steroid use could alter the results. She said a phone call to the FAB had not been returned; however, there are no records of any telephone calls after the recommended decision was issued.

The district office and Final Adjudication Branch are bound by the policies and procedures in place at the time a claim is adjudicated and are required to review such a claim in light of those current policies. The issue for determination is whether the chest x-rays meet the pre-1993 criteria for a statutory diagnosis of CBD. Since Dr. Sandblom did not specifically mention the chest x-ray report of February 13, 1967 (which the district office used as support for their recommended acceptance in the original decision) in his earlier response, the Final Adjudication Branch requested clarification. In an addendum dated September 15, 2005, Dr. Sandblom explained that the pulmonary fibrosis noted in February 1967 was due to localized scarring “consistent with the prior lobectomy for lung abscess” and stated that “these changes are definitely not consistent with CBD.”

Furthermore, the procedures address the use of a normal LPT in a living claimant: a lung biopsy that confirms the presence of granulomas may override a normal LPT. The district office thoroughly addressed this requirement in the recommended decision, as discussed above. Telephone records in the case file indicate a test kit was to be forwarded to you in May by ORISE. The results of that testing have not been received.

FINDINGS OF FACT

1. On May 30, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA, for emphysema, and on February 23, 2004, you filed a Form EE-1 for chronic beryllium disease(CBD) and removal of lung in 1958

2. The district office verified employment at Y-12 as December 20, 1954 to October 9, 1955 and at X-10 from October 10, 1955 to July 31, 1982.

3. The medical evidence does not establish that the employee was diagnosed with a “covered beryllium illness” as defined in the Act.

4. On May 9, 2005, the Jacksonville district office issued a recommended decision to deny compensation and medical benefits for chronic beryllium disease, emphysema, and a lung abscess.

5. On July 5, 2005, the Final Adjudication Branch received a letter of objection from your attorney-in-fact, dated June 30, 2005, and conducted a review of the written record. The objections are insufficient to warrant a change to the recommended decision.

CONCLUSIONS OF LAW
The undersigned has reviewed the facts and the recommended decision issued by the Jacksonville district office on May 9, 2005, and finds that the evidence submitted does not establish that you meet the statutory criteria for a diagnosis of chronic beryllium disease, as defined in the Act, or any other covered occupational illness, as defined in the Act and implementing regulations. 42 U.S.C. §§ 7384l(13), 7384l(15), 20 C.F.R. § 30.5(z). I find that the decision of the district office is supported by the evidence and the law, and cannot be changed based on the objections submitted. As explained in the implementing regulations, “Any claim that does not meet all of the criteria for at least one of these categories as set forth in these regulations must be denied.” 20 C.F.R. § 30.110(b). Therefore, I find that you are not entitled to compensation or medical benefits under the Act, and that your claim for compensation must be denied.

Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative

page 62

EEOICPA Fin. Dec. No. 55006-2005 (Dep’t of Labor, December 7, 2004)

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch concerning your claim for compensation under Part B of the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted
in part and deferred in part.

STATEMENT OF THE CASE
On March 3, 2004, you filed a Form EE-1, Claim for Benefits under Part B of the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for lung cancer. On the Form EE-3, Employment History, you stated you were employed at the K-25 gaseous diffusion plant (GDP) in Oak Ridge, Tennessee, for the period of February 24, 1992 to present. The Department of Energy verified this employment as February 24, 1992 and continuing.

Although you did not claim that condition, the district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD). On November 3, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation in the
amount of $150,000 for chronic beryllium disease. The district office’s recommended decision also concluded that you are entitled to medical benefits effective March 3, 2004 for chronic beryllium disease. The district office deferred a recommendation on the claimed lung cancer, pending dose
reconstruction by the National Institute for Occupational Safety and Health (NIOSH). On November 12, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

I have reviewed the medical evidence and find that it is sufficient to establish that you have chronic beryllium disease. According to the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by the following:

(A) For diagnoses on or after January 1, 1993, beryllium sensitivity (as established in accordance with paragraph (8)(A)), together with lung pathology consistent with chronic beryllium disease, including—

• (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease;
• (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or
• (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease.

(B) For diagnoses before January 1, 1993, the presence of—

• (i) occupational or environmental history, or epidemiologic evidence of beryllium exposure; and
• (ii) any three of the following criteria:
• (I) Characteristic chest radiographic (or computed tomography (CT) abnormalities;
• (II) Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;
• (III) Lung pathology consistent with chronic beryllium disease;
• (IV) Clinical course consistent with a chronic respiratory disorder;
• (V) Immunologic tests showing beryllium sensitivity. 42 U.S.C. § 7384l(13).

A pathology report dated October 1, 2001, reporting results of a lung biopsy performed on September 28, 2001, revealed focal non-caseating granuloma. Three beryllium lymphocyte proliferation tests (LPT) from mid-2004 were interpreted as being normal. However, Dr. Charles Bruton opined on August 10, 2004 that, even though your LPTs were normal, your open lung biopsy with noncaseating granulomas was consistent with chronic beryllium disease. Based on the post-1993 criteria, the medical evidence supports a finding of chronic beryllium disease.[1]

FINDINGS OF FACT
1. You filed a Form EE-1, Claim for Benefits under Part B of the EEOICPA, on March 3, 2004.

2. The medical evidence is sufficient to establish that you have chronic beryllium disease pursuant to Part B of the Act. 42 U.S.C. § 7384l(13).

3. You were employed at the K-25 GDP for the period of February 24, 1992 and continuing. Beryllium was present at this facility during the time you were employed. Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in Part B of the Act. 42 U.S.C. § 7384l(7).

4. The Jacksonville district office issued the recommended decision on November 3, 2004.

5. On November 12, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW
I find that you are a covered beryllium employee, as that term is defined in Part B of the Act; and that your chronic beryllium disease is a covered condition under Part B of the Act and implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13); 20 C.F.R. § 30.207.

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective March 3, 2004, for chronic beryllium disease, pursuant to Part B of the Act. 42 U.S.C. §§ 7384s(a), 7384t.

Jacksonville, FL
Sidne M. Valdivieso
Hearing Representative

[1] Federal (EEOICPA) Procedure Manual, Chapter 2-700.4b(2) (September 2004) states that in claims that contain a normal or borderline LPT and the lung tissue biopsy confirms the presence of granulomas consistent with CBD, the CE may accept the claim for CBD if the treating physician provides a detailed narrative report detailing the history of the claimant’s LPT results and steroid use.

page 64
EEOICPA Fin. Dec. No. 20120308-50279-1 (Dep’t of Labor, May 22, 2012)
EMPLOYEE:[Name Deleted]
CLAIMANT: [Name Deleted]
FILE NUMBER: [Number Deleted]
DOCKET NUMBER: 20120308-50279-1
DECISION DATE: May 22, 2012

NOTICE OF FINAL DECISION

This is the decision of the Final Adjudication Branch (FAB) concerning the above-noted claim for benefits under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended (EEOICPA), 42 U.S.C. § 7384 et seq. For the reasons stated below, this claim for survivor benefits under Part B of EEOICPA based on chronic beryllium disease (CBD) is denied.

STATEMENT OF THE CASE

On September 13, 2010, the claimant filed a Form EE-2 claiming survivor benefits as the alleged surviving spouse of [Employee], and alleged that the employee had contracted bladder cancer, colon cancer, chronic obstructive pulmonary disease (COPD), chronic renal failure, coronary artery disease, and CBD due to his work. On July 1, 2011, FAB issued a final decision accepting this claim under Part E of EEOICPA as the surviving spouse of [Employee]. In that decision, FAB found that [Employee] was a covered Department of Energy (DOE) contractor employee at the Portsmouth Gaseous Diffusion Plant from March 1, 1954 to September 22, 1954, and awarded the claimant compensation of $125,000.00 under Part E based on the employee’s death due to his covered illnesses of COPD and chronic renal failure. On July 12, 2011, FAB issued a second final decision denying the claim for survivor benefits under Part B for bladder cancer and colon cancer, and under Part E based on coronary artery disease and CBD.

The medical evidence submitted in support of the claim included a series of records documenting the employee’s treatment history for COPD and other respiratory problems dating back to 2005. A beryllium lymphocyte proliferation test (BeLPT) performed on May 5, 2005 was negative for beryllium sensitivity. The records also contain a series of chest x-rays, computerized tomography (CT) scans and pulmonary function tests, which formed the basis for his diagnosis of COPD. In a report dated November 6, 2008, Dr. Elie Saab raised the issue of whether the employee may have had beryllium sensitivity, but stated that further test data was necessary. A brief one-page report from Dr. Saab dated January 13, 2009 also provides a “problem list” indicating “chronic berylliosis.” A coronary consultation report dated April 8, 2009 from Dr. Aaron Adams states that the employee “had tested positive per Dr. Saab for berylliosis” but did not otherwise indicate that such a diagnosis had been confirmed, nor did he cite any test results supporting this diagnosis.

By letters dated December 5, 2011 and January 20, 2012, the district office advised Dr. Saab of the statutory criteria necessary to support a diagnosis of CBD, and asked him to provide a supplemental report explaining whether the employee was diagnosed with CBD. Specifically, Dr. Saab was advised that for diagnoses on or after January 1, 1993, the record must contain a positive LPT performed on either blood or lung lavage cells, as well as lung pathology results consistent with CBD, which may include: (i) a lung biopsy showing granulomas or a lymphocytic process consistent with CBD; (ii) a computerized axial tomography scan showing changes consistent with CBD; or (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with CBD. The district office received no further medical evidence in response to these requests.

On March 8, 2012, the Cleveland district office issued a recommended decision to deny the claim for survivor benefits under Part B based on CBD, concluding that the evidence did not establish a diagnosis of CBD under the post-1993 statutory criteria.

FINDINGS OF FACT
1. The claimant filed a claim for benefits as the surviving spouse of [Employee] based on CBD.

2. On July 1, 2011, FAB issued a final decision accepting the claim under Part E of EEOICPA as the surviving spouse of [Employee], based on the employee’s death due to the covered illnesses of chronic renal failure and COPD.

3. [Employee] was a DOE contractor employee at the Portsmouth Gaseous Diffusion Plant from
March 1, 1954 to September 22, 1954.
4. [Employee] died on August 28, 2010. The claimant is his surviving spouse.

CONCLUSIONS OF LAW

I have reviewed the evidence of record and the recommended decision issued by the district office on March 8, 2012. I find that no objections to the recommended decision have been filed, and that the 60-day period for filing such objections has expired.

To be entitled to survivor compensation under Part B on the basis of CBD, the evidence must establish that the employee was a DOE contractor employee who was exposed to beryllium in the performance of duty while present at a DOE facility during a period when beryllium dust, particles or vapor may have been present at such a facility. The evidence must also show that the employee was diagnosed with “established chronic beryllium disease.” 42 U.S.C. § 7384l(13).

Part B of EEOICPA provides two sets of criteria for meeting the definition of “established chronic beryllium disease.” CBD diagnosed after January 1, 1993 is established by abnormal BeLPT results consistent with beryllium sensitivity, together with lung pathology consistent with chronic beryllium disease. Such pathology may be demonstrated by the following: (i) a lung biopsy showing granulomas or a lymphocytic process consistent with chronic beryllium disease; (ii) a computerized axial tomography scan showing changes consistent with chronic beryllium disease; or (iii) pulmonary function or exercise testing showing pulmonary deficits consistent with chronic beryllium disease. 42 U.S.C. § 7384l(13)(A). CBD diagnosed before January 1, 1993 is established by evidence satisfying any three of the following diagnostic criteria: (i) characteristic chest radiographic (or CT) abnormalities; (ii) restrictive or obstructive lung physiology testing or diffusing lung capacity defect; (iii) lung pathology consistent with chronic beryllium disease; (iv) a clinical course consistent with a chronic respiratory disorder; or (v) immunologic tests showing beryllium sensitivity (skin patch test or
beryllium blood test preferred). 42 U.S.C. § 7384l(13)(B).

Under the Program’s procedures, the determination as to whether a claim is to be evaluated using the pre-1993 or post-1993 criteria must be based on the totality of the evidence, taking into account when the employee was tested for, diagnosed with or treated for a chronic respiratory disorder. Federal (EEOICPA) Procedure Manual, Chapter 2-1000.6 (October 2009). On review of the evidence in the file, I find that the file lacks any evidence that the employee underwent treatment for a chronic respiratory disorder prior to 1993. Therefore, the post-1993 criteria are applicable to this case. Since
the record lacks any abnormal BeLPT results showing that the employee was diagnosed with beryllium sensitivity, it is not sufficient to support a diagnosis of established chronic beryllium disease under Part B. Accordingly, this claim for survivor benefits under Part B based on CBD is denied.

Cleveland, OH
Greg Knapp
Hearing Representative
Final Adjudication Branch

page 67
EEOICPA Fin. Dec. No. 19516-2004 (Dep’t of Labor, October 15, 2004)

NOTICE OF FINAL DECISION AND REMAND ORDER

This is the decision of the Final Adjudication Branch concerning your claim for compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000, as amended, 42 U.S.C. § 7384 et seq. (EEOICPA or the Act). For the reasons set forth below, your claim is accepted.

STATEMENT OF THE CASE

On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA. The claim was based, in part, on the assertion that you were an employee of a Department of Energy (DOE) contractor at a DOE facility. You stated on the Form EE-1 that you were filing for chronic obstructive pulmonary
disease (COPD).

On the Form EE-3, Employment History, you stated you were employed at the Paducah gaseous diffusion plant (PGDP) in Paducah, Kentucky from 1951 to 1954 and 1957 to 1963. The Department of Energy verified this employment as June 6, 1952 to December 23, 1954 and January 20, 1958 to January 11, 1963.

The district office found that the medical evidence disclosed findings consistent with the diagnosis of chronic beryllium disease (CBD). On August 20, 2004, the Jacksonville district office issued a decision recommending that you are entitled to compensation of $150,000 for chronic beryllium disease and that COPD is a consequential obstructive lung injury of CBD. The district office’s recommended decision also concluded that you are entitled to medical benefits effective January 15, 2002 for chronic beryllium disease and the consequential injury of COPD.

On September 20, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

I have reviewed the medical evidence and find that it is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium disease. According to § 7384l(13)(B) of the Act, the term “established chronic beryllium disease” means chronic beryllium disease as established by occupational or environmental history, or epidemiologic evidence of beryllium exposure; and, any three of the following criteria:

 Characteristic chest radiographic (or computed tomography (CT) abnormalities;

 Restrictive or obstructive lung physiology testing or diffusing lung capacity defect;

 Lung pathology consistent with chronic beryllium disease;

 Clinical course consistent with a chronic respiratory disorder;

 Immunologic tests showing beryllium sensitivity.

According to the Department of Energy’s Covered Facilities List, exposure to beryllium was possible during your employment at the PGDP. Your verified work for at least one day between 1952 and 1963 is sufficient to establish that you were exposed to beryllium. You have also submitted sufficient evidence to meet 3 of the above criteria: (1) Radiological reports of the chest from 1991, 1993, 1997 and 2001 show lung fibrosis, interstitial markings and chronic inflammatory changes; these findings are characteristic of CBD; (2) a 1993 pulmonary function test report contains a finding of a severe obstructive airway disease; this finding shows obstructive lung physiology testing; (3) medical reports from 1989 to 2001 contain findings of COPD, oxygen dependency and the use of bronchodilators; these findings show a clinical course consistent with a chronic respiratory disorder such as CBD. The evidence of record is sufficient to establish a diagnosis of pre-January 1, 1993 chronic beryllium disease.

I also find that the case must be remanded for a determination regarding the claimed condition of chronic obstructive pulmonary disease (COPD). The district office determined that COPD was a consequential injury of CBD. However, the implementing regulations are clear in stating that an injury, illness, impairment or disability sustained as a consequence of beryllium sensitivity or established chronic beryllium disease must be established with a fully rationalized medical report by a physician that shows the relationship between the injury, illness, impairment or disability and the beryllium
sensitivity or established chronic beryllium disease. Neither the fact that the injury, illness, impairment or disability manifests itself after a diagnosis of beryllium sensitivity or established chronic beryllium disease, nor the belief of the claimant that the injury, illness, impairment or disability was caused by the beryllium sensitivity or established chronic beryllium disease is sufficient in itself to prove a causal relationship.[1] The medical evidence does not contain the required medical opinion.

FINDINGS OF FACT

1. On January 15, 2002, you filed a Form EE-1, Claim for Benefits under the EEOICPA.

2. The medical evidence is sufficient to establish that you have chronic beryllium disease. 42 U.S.C. § 7384l(13).

3. You were employed at the Paducah gaseous diffusion plant, Paducah, Kentucky, from June 6, 1952 to December 23, 1954 and January 20, 1958 to January 11, 1963. Beryllium was present at this facility during the time you were employed. Since you were exposed to beryllium in the performance of duty, you are a covered beryllium employee as defined in the Act. 42 U.S.C. § 7384l(7).

4. The Jacksonville district office issued the recommended decision on August 20, 2004.

5. On September 20, 2004, the Final Adjudication Branch received your written notification that you waive any and all objections to the recommended decision.

CONCLUSIONS OF LAW

I find that you are a covered beryllium employee as defined in the Act and that your chronic beryllium disease is a covered condition under the Act and the implementing regulations. 42 U.S.C. §§ 7384l(7), 7384l(13).

I find that the recommended decision is in accordance with the facts and the law in this case, and that you are entitled to $150,000 and medical benefits effective January 15, 2002, for chronic beryllium disease pursuant to §§ 7384s(a) and 7384t of the EEOICPA. 42 U.S.C. §§ 7384s(a), 7384t.

Your claimed condition of chronic obstructive pulmonary disease is remanded to the district office for a determination on your eligibility for benefits for this condition. After obtaining the appropriate information and reviewing the facts in accordance with the EEOICPA and the implementing regulations, the district office should issue a new decision in accordance with office procedure.[2]

Jacksonville, FL
James Bibeault
Hearing Representative
[1] 20 CFR § 30.207(d)
[2] Federal (EEOICPA) Procedure Manual, Chapter 2-1000.5a (June 2002).