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SgtE5

Seaman
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About SgtE5

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    E-3 Seaman

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    U.S.M.C
  1. Thanks broncovet for the reply. Tittinus is not in my smr's. Only in my VA records. In 2002 I was diagnosed with subjective tinnitus and unbeknowed to me, it was dropped. I found out in my original denial. My present VA doctor has diagnosed again. So current diagnose is met. To me, both VA fast letter 10-35, my lay stements and most importantly, the imo creates the second and third requirment for service connection. I was also thinking my argument is a little long, but don't want to give them any room for denial. Your suggesting taken out all the CAV rulings?
  2. Filed in 2015 Denied April 2016 NOD DRO review SOC issued 20 Sept. 2018 Need help as to how to argue this case. IMO stated issue was most likely related to service. Evidence on record VA ignored. This is a very rough draft of my argument. I am in receipt of a Statement Of Case concerning my claim on Tinnitus and wish to appeal to the Board Of Veterans Appeals with the following argument. First and foremost, I state again my tinnitus as I know now what it is, was a condition I was not aware of what it was in service and that would not go away and passed it off as it’ll be fine in a week or two. I was never asked at my discharged physical. It was 11 years after I was discharged that limited tinnitus surveillance was introduced with post-deployment health assessment questionnaires. I never pursued via doctors for the ringing since having no medical insurance after service, I could not pay out of pocket. During my first appointment as a new patient with the VA in Oct 2002 I complained of Tinnitus and received a diagnosis of Subjective Tinnitus. At that time, I wasn’t aware it was a disability for VA purposes. Why or how it dropped off my active problems list I don’t know. But my present doctor has diagnosed me again. In my first VA hearing test, I stated that my tinnitus had an onset late 1980’s early 1990’s and in 2007, the audiologist shortened it to “Many years” My MOS 3531 is on the list of Duty MOS Hearing Loss Probability Chart-VA Fast Letter 10-35 as having a moderate probability of being exposed to hazardous noise. Exposure to such noise has been conceded for purposes of establishing the in-service event. The evidence on record shows neither the RO or DRO properly applied the Reasonable Doubt doctrine. §3.102 Reasonable doubt. It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships. (Authority: 38 U.S.C. 501(a)) In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that: The statutory “benefit of the doubt” standard of proof for cases dealing with veterans benefits is at the farthest end of the spectrum, beyond even the “fair preponderance” standard. And Therefore, a veteran need only demon­strate that there is an “approximate bal­ance of positive and negative evidence” in order to prevail; entitlement need not be established “beyond a reasonable doubt,” by “clear and convincing evidence,” or by a “fair preponderance of evidence.” In other words, as counsel for the Secretary agreed at oral argument, the preponderance of the evidence must be against the claim for benefits to be denied. In a very real sense, the Secretary faces an easier task than other administrative or judicial factfinders who must render a decision even in the closest of cases; when a veteran seeks benefits and the evidence is in relative equi­poise, the law dictates that veteran pre­vails. This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there is an “approximate balance of positive and nega­tive evidence.” By tradition and by stat­ute, the benefit of the doubt belongs to the veteran. On 7/2/2015 Dr. Julie Lewerenz a private Board Certified Doctor of Audiology opined that my tinnitus is most likely related to my military service. She states: Patient was seen for concern of constant bilateral tinnitus (worse right ear) that began in the late 1980's. He has a significant history of occupational noise exposure from his service in the Marines as a motor vehicle operator and marksmanship instructor. He was also exposed to noise aboard ships, gunfire during basic training, and from helicopters. He also reported intermittent aural fullness and intermittent imbalance (not true vertigo) that occurs every few months for a few seconds. His previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years. He attributes the tinnitus to his history of noise exposure. He denied familial hearing loss, hearing difficulties, and otalgia. She goes on to say: Otoacoustic emissions (OAE) testing was performed today to assess outer hair cell integrity. Testing revealed some absent high frequency OAEs bilaterally (see table above), which are most likely related to the patient's history of military acoustic trauma and provide explanation for the patient's tinnitus. He was advised to avoid loud noise and wear hearing protection to prevent further damage. While Dr. Lewerenz does not use the correct VA term “STR”, she does state “His previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years.” In other words, she was made available all my medical records for both my military service and VA. There is an approximate balance of evidence in equipoise which brings in the Reasonable Doubt Doctrine. Doctor Babeu in her own c&p evaluation, notes: Military Noise Exposure Hx: ship board noises, heavy trucks, explosions, and small arms fire: sometimes protected. She fails to opine that I was sometimes protected, the explosions I was exposed to being in explosive ordnance disposal and ship board noises while in Desert Shield and Desert Storm nor my deployment on a Merchant Marine Ship to Honduras and in 1989 my TAD as an instructor to Marksmanship Instructor School, Camp Lejeune. She also lists combat under history but does not address it. Doctor Babeu failed to accept the long-term exposure to continuous noise and my lay statments in not applying the fact that I was deployed during operation Desert Shield and Desert Storm for 8 months aboard the U.S.S. Guam LPH-9. The Guam being a Landing Platform Helicopter, there were constant noise of helicopters taking off and landing and noise from engines being worked on in the hanger deck which certainly falls under noise induced tinnitus. Doctor Babeu references the 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus study in her opinion. In chapter 3 “At sea, for example, sailors are exposed to ambient shipboard noise continuously and may encounter potentially hazardous noise levels even in their sleeping quarters, giving their auditory systems no opportunity for short-term recovery (Yankaskas and Shaw, 1999; Yankaskas, 2001, 2004).” In chapter 4: “The possibility that the onset of noise-induced tinnitus might be delayed by months has been raised because studies in laboratory animals have shown that degenerative processes initiated by the noise exposure continue in central auditory pathways after termination of the exposure (Kim et al., 1997; Morest et al., 1998). Although degenerative changes in afferent pathways will most likely not affect auditory thresholds, it is possible that they could contribute to other central processes such as tinnitus. (emphasis added) The time required for this reorganization might vary across individuals and potentially could be a long-term process. In VA’s own Training Letter 10-02, it is stated under the section for Tinnitus: 4. What is its onset? The onset may be gradual or sudden, and individuals are often unable to identify when tinnitus began. Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered. This adds to the difficulty of determining the etiology or precipitating cause. The VA acknowledges that Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Using the term “such as” in the above statement, implies that a person does not need to have hearing loss to have Tinnitus and Dr. Babeu, states in her opinion “In most cases, tinnitus is accompanied by measurable hearing loss.” This contradicts her etiology opinion as it suggests that there are some cases, albeit very limited, in which tinnitus is not accompanied by measurable hearing loss. Turning to the statement: Your service treatment records do not contain complaints, treatment or diagnosis for this condition and to the reason stated: In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Dalton v. Nicholson, 21 Vet. App. 23 (2007) held that: Finally, to the extent the Board concluded that the third Hickson element–medical nexus–was not satisfied, the Board improperly relied on an inadequate medical examination to reach this conclusion. The Board relied on the report of an April 2003 VA examination to conclude that "the record contains a medical conclusion by which the idea of a nexus between the veteran's current back disability and his military service is expressly rejected." R. at 15. The examination report contains the following conclusion: "After full review of [the claims] file and [SMRs], I see no evidence of any back injury while in service and it is my medical opinion that it is not likely that the veteran's present back problems are related to his military service." R. at 498 (emphasis added). A plain reading of this sentence suggests that the sole premise for the examiner's conclusion was the lack of notation or treatment of a back injury in service. Indeed, it appears that the medical examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service. See R. at 496 (examiner recorded appellant's assertion that he had injured his back when an ammunition dump exploded, he was thrown by the force, and landed on his back); see also Buchanan, 451 F.3d at 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) ("[R]eliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran."); Reonal v. Brown, 5 Vet. App. 458 , 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that VA medical examiner's conclusions were of "questionable probative value" because examiner failed to consider certain information). Although a medical opinion based on recitations of a claimant that have been rejected by the Board is of little probative value, see Coburn and Reonal, both supra, the Board's consideration of the third Hickson element in this case specifically assumed an in-service back injury. R. at 15 ("[E]ven if the Board were to assume, for the purpose of this discussion only, that the veteran did incur an in-service back injury, the medical evidence fails to demonstrate a nexus between such assumed injury and his current disability."). Ipso facto, the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service. And continues: See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the purpose of section 1154(b) was "to overcome the adverse effect of a lack of official record of incurrence or aggravation of a disease or injury and treatment thereof" (citing H.R. Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)). Having served in Operation Desert Shield and Desert Storm, and having received the combat action ribbon (see DD215) for the Gulf War, 38 U.S. Code § 1154(b) applies here in this case: In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. Neither Dr. Babeu, RO nor the DRO who denied my application applied 38 U.S. Code § 1154 (a) - Consideration to be accorded time, place, and circumstances of service (a)(1) Neither opine as to my duty stations or deployments. (a (1) The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence, and (2) the provisions required by section 5 of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act (Public Law 98–542; 98 Stat. 2727) It should be acknowledged and accepted my lay statements of being exposed to acoustic trauma in service to be credible given my military occupational specialty and being consistence of when my tinnitus began. In giving due consideration to the places, types, and circumstances of my service, a nexus should have been conceded between my service and my claim as being continuous. Service incurrence of an acoustic trauma injury has been demonstrated. As per both the M813 and M923 5 Ton trucks technical service manual which I drove for 8 years, it is stated: WARNING HIGH INTENSITY NOISE Hearing protection is required for the driver and co-driver. Hearing protection is also required for all personnel working in and around this vehicle while the engine is running (reference AR 40-5 and TB MED 501). We never wore hearing protection while driving in or while working near the vehicle while the engine was running. VSO's are in training and can not get an appt to review my case until 2 weeks from now. Should I get a lawyer?
  3. Thanks for the reply Buck. The independent doctor I went to actually interned at the St. Petersburg VA hospital. She read my str hearing tests and va tests. Did her own tests and opined that "more than likely" my tinnitus is related to military. When I filed my NOD in 2016, I asked for a DRO hearing. The c&p doctor just keeps copying the opinon from the Military Service Implications for Hearing loss and Tinnitus study that was done in 2005. Rationale for Opinion Given: The induction and separation audiograms indicate normal hearing bilaterally. There is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur". Reference: 22 Sep 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. IOM never stated that tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus is accompanied by measurable hearing loss. We recognize that the audiogram is an imperfect measurement. Nevertheless, it is accepted as the objective basis for determining noise injuries.
  4. Thanks Gastone for the reply. My mos was 3531 motor vehicle operator. Has a listing in the Duty MOS Hearing Loss Probibility Chart-VA Fast Letter 10-35 as moderate probable exposure to noise. Yes I do have a CAR from Desert Storm. The c&p doctor never asked how long I've had tinnitus. Just what noises I was exposed to and about after military. Funny thing is that in her report, she states I was exposed to explosions. VA Denial.docx C&P1.pdf IMO.docx
  5. First like to say that anyone that has access to myhealthvet should use the blue button to download your va medical records. I found out they are working on my nod or at least was in 2016. I filed for compensation for tinnitus June 2015. Was denied in April 2016. Filed a NOD with a imo that stated "more than likely" related to service. So today I downloaded my medical records from myhealthvet and saw an entry dated March 2016 by the same c&p examiner that said "less likely as not" she now has my str. She didn't at the c&p. She also had the imo I sent in wiith my nod. When I went to see the independent audiologist, I had my complete str with hearing examines during my service. She noted that "His previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years." But the c&p doctor says in the updated notes from 2016: "Private Medical Records reviewed: Audio: 2 Jul 15: Florida Meidcal Clinic: Mild SNHL AD and normal hearing sensitivity AS with excellent word recognition scores for AU: Dr. opined that Veteran's current HL and tinnitus is a result of military noise exposure: (Examiner's note: Dr. did not have access to Veteran's STRs so Dr. was unable to assess Veteran's hearing status when Veteran was on active duty)" The c&p doctor is fixated on without hearing loss, there is no tinnitus. She again states less likely as not in her updated 2016 notes. My question is should I send in the copy of the updated c&p notes and the imo and highlight where the private doctor states "His previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years." And while I'm at it, I was giving a tinnitus question & answer pamplet from the va that says "The most common cause of tinnitus exposure to loud noise" Nothing in the pamplet says usually associated with HL. Should I send that in as well?
  6. Went to see the vso. She typed up a NOD and sent it off. Will see what happens next.
  7. First time poster but have reading Hadit for over a year. Here's my situation. I filed for Tinnitus June 2015 and just received my denial letter. I see many errors in the decision. Did not follow VA training Letter 10-02. Did not consider my IMO. And I don't think they actually read the whole C&P exam notes. Also, doesn't look like the examiner had my SMR. Only my VA records. I am in the VA medical system. No service connection. I am not claiming HL. Only tinnitus. I will omit the hearing part of the exam but include her opinion on it. The examiner didn't even want to look at my smr that I brought with me. Bold parts is what I feel is relevant to an appeal. I entered in to VA system in 2002 and complained about tinnitus soon after. In '92 I didn't know what tinnitus was when I eas. There was no such thing as after deployment questionnaires or on exit exams. Basically it was, ok your done. Next. C&P HL opinion Today's evaluation, Veteran had normal hearing sensitivity AU. The claimed condition/symptom hearing loss and tinnitus is less likely as not (less than 50/50 probability) caused by or a result of noise exposure in the military for AU. Rationale for Opinion Given: There is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur". Reference: 22 Sep 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. IOM never stated that tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus is accompanied by measurable hearing loss. We recognize that the audiogram is an imperfect measurement. Nevertheless, it is accepted as the objective basis for determining noise injuries. HISTORY: Active Service Period: Marine Corps EOD: 06/10/1988 RAD: 06/09/1992 (1984-92) (combat) Military specialty: Motor Vehicle Operator NOISE EXPOSURE HISTORY: Military Noise Exposure Hx: ship board noises, heavy trucks, explosions, and small arms fire: sometimes protected Occupational Noise Exposure Hx: computers (no loud noise) semi-truck driver noises Recreational Noise Exposure Hx: carpentry (unprotected) SECTION 2: TINNITUS -------------------- 1. Medical history ------------------ Does the Veteran report recurrent tinnitus: Yes Date and circumstances of onset of tinnitus: Veteran complains of decreased hearing AU has to lip read to understand conversation. Veteran also complains of constant non-disabling tinnitus AU worse AD with onset of late 1980s. He does not recall a specific incident that preceded the onset of tinnitus. - (This is a lie. I gave her a number of incidents.) 2. Etiology of tinnitus ----------------------- Less likely than not (less than 50% probability) caused by or a result of military noise exposure. Rationale: Requested exams currently on file: Marine Corps EOD: 06/10/1988 RAD: 06/09/1992 DBQ AUDIO Hearing Loss and Tinnitus: The Veteran has important information in his or her electronic claims folder in VBMS and Virtual VA. Please review both folders and state that they were reviewed in your report. The Veteran is claiming that his or her tinnitus is related to exposure to hazardous noise. Please fill out the Direct medical opinion template in the DBQ and review the following tabbed evidence. Your review is not limited to the evidence identified on this request form, or tabbed in the claims folder. If an examination or additional testing is required, obtain them prior to rendering your opinion. POTENTIALLY RELEVANT EVIDENCE: NOTE: Your (examiner) review of the record is NOT restricted to the evidence listed below. This list is provided in an effort to assist the examiner in locating potentially relevant evidence. Tab Certificate of Release or Discharge From Active Duty (DD Form 214 in VBMS): MOS: Motor Vehicle Operator dated 06/06/2015 Tab STR-Medical Photocopy (STRs in VBMS): See pgs 7, 26, 44, 67, 80 - active problems - subjective tinnitus dated 06/07/2015 Additional remarks for the examiner: Veteran's MOS is Motor Vehicle Operator Noise Exposure Listing shows moderate noise exposure CONFIDENTIAL Page 19 of 34 OPINION RATIONALE: Claim File reviewed today and revealed the following: There were no STRs in the VBMS or VVA or physical C-File available for review. Medical Note: 28 May 13: ophthalmology surgery: c/o tinnitus CPRS reviewed: Audio evaluations covering the period of 2007-08 indicated that Veteran has normal hearing sensitivity AU with excellent word recognition scores for AU. Statement of Credentials: Credentials of Examining Audiologist: Ph.D. CCC-A with current and active Florida state licensure. Pertinent Evidence of Opinion Includes: REFERENCES: September 22, 2005 Institute of Medicine Report Noise and Military Service: Implications for Hearing Loss and Tinnitus, Consensus Statement on Noise and Hearing Loss, Educational Resource Guide: Noise-induced Hearing Loss, National Institute on Deafness and Other Communication Disorders, 2000.Noise-induced Hearing Loss, National Institute on Deafness and Other Communication Disorders, 1999. Review of the Record: There were no STRs in the VBMS or VVA or physical C-File available for review. Findings/Opinion There were no STRs in the C-File so examiner unable to assess Veteran's hearing status while he was on active duty to determine if there was a pre-existing hearing loss or if there were any significant threshold shifts at time of separation. Audio evaluation conducted in 2007 indicated that Veteran had hearing WNLs AU (with very sensitive thresholds) almost 20 years post active service. Today's evaluation, Veteran had normal hearing sensitivity AU. The claimed condition/symptom hearing loss and tinnitus is less likely as not (less than 50/50 probability) caused by or a result of noise exposure in the military for AU. Rationale for Opinion Given: There is insufficient evidence from longitudinal studies in laboratory animals or humans to determine whether permanent noise-induced hearing loss can develop much later in one's lifetime, long after the cessation of that noise exposure. Although the definitive studies to address this issue have not been performed, based on the anatomical and physiological data available on the recovery process following noise exposure, it is unlikely that such delayed effects occur". Reference: 22 Sep 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist. Tinnitus may occur following a single exposure to high-intensity impulse noise, long-term exposure to repetitive impulses, long-term exposure to continuous noise, or exposure to a combination of impulses and continuous noise. However, you would have to accept the scientifically unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed noise injury. IOM never stated that tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus is accompanied by measurable hearing loss. We recognize that the audiogram is an imperfect measurement. Nevertheless, it is accepted as the objective basis for determining noise injuries. 3. Functional impact of tinnitus -------------------------------- Does the Veteran's tinnitus impact ordinary conditions of daily life, including ability to work: No 4. Remarks, if any, pertaining to tinnitus:: -------------------------------------------- No response provided NOTE: VA may request additional medical information, including additional examinations if necessary to complete VA's review of the Veteran's application. First of all, she did not have my SMR to actually know what they said. Tinnitus isn't in there though. But my hearing test would have showed a decline (Not to VA standards) but a decline over the 8 years I was in. Would also show that I was in explosive ordinance disposal. All she did was copy somebody's else opinion on the Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. Don't think she even read the book. Her is the kicker, I went to a private audiologist and laid out my SMR and VA medical records for her to see and here is her conclusion: Patient was seen for concern of constant bilateral tinnitus (worse right ear) that began in the late 1980's. He has a significant history of occupational noise exposure from his service in the Marines as a motor vehicle operator and marksmanship instructor. He was also exposed to noise aboard ships, gunfire during basic training, and from helicopters. He also reported intermittent aural fullness and intermittent imbalance (not true vertigo) that occurs every few months for a few seconds. His previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years. He attributes the tinnitus to his history of noise exposure. He denied familial hearing loss, hearing difficulties, and otalgia. Otoacoustic emissions (OAE) testing was performed today to assess outer hair cell integrity. Testing revealed some absent high frequency OAEs bilaterally (see table above), which are most likely related to the patient's history of military acoustic trauma and provide explanation for the patient's tinnitus. He was advised to avoid loud noise and wear hearing protection to prevent further damage. On the list for evidence reviewed in the denial, there is no mention of the IMO. In the VA training letter 10-02 section E Tinnitus paragraph 4 it states: 4. What is its onset? The onset may be gradual or sudden, and individuals are often unable to identify when tinnitus began. Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered. This adds to the difficulty of determining the etiology or precipitating cause. So to copy in her opinion that it is unlikely such delays occur contradicts VA letter 10-02. Also, I have read the book 22 Sep 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. It does state: The impulsive and intermittent nature of many military noise exposures (e.g., gunfire, plane launches and landings, tank operation, 6-month shipboard deployments) adds an element of uncertainty to considerations of exposure and effect. For example, “high noise levels” for about 3 hours of a 14-hour period have been described as typical of high-tempo flight operations on an aircraft carrier (Yankaskas and Shaw, 1999). As discussed in Chapter 2, intermittent noise exposure may permit recuperation, thus ameliorating to some extent the hazardous effect of noise exposures. However, military personnel may also have noise exposures that are prolonged compared to those of civilians. At sea, for example, sailors are exposed to ambient shipboard noise continuously and may encounter potentially hazardous noise levels even in their sleeping quarters, giving their auditory systems no opportunity for short-term recovery (Yankaskas and Shaw, 1999; Yankaskas, 2001, 2004). Which I was aboard the USS Guam for 8 months during Desert Shield/Storm. My units quarters was top level right under the flight deck. Also in the denial letter it states that the evidence don't show a current diagnoses for tinnitus. I call fowl on that. Per my VA medical records I was diagnosed with subjective tinnitus (ICD-9-CM 388.31) with a date of 00/00/2004 and again 06/13/2006 There is also a line for evidence review that says: Memorandum of unavailability of service treatments records, VA records management center. Dated March 15, 2016. Apologize for long message but wanted to give all information I could. So how should I proceed in this matter? Do you think that a DRO hearing is the route to go with the IMO that was not considered? Edit: Also in the Duty MOS For Noise Exposure, my MOS has a moderate noise exposure. And then says If the duty position shows to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. I'm not sure how to understand that. Surely it can't be saying it's an automatic.
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