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The following is the Va Regional Office response to my Congrint regarding the VA developing to deny in my audio increase claim. The VA response challenges any common sense reading of their submission to the Congressman. Dear Congressional Representative: Thank you for your inquiry regarding Mr. XXXXXXXXXX. The VA examination for hearing loss on March 6, 2018 was consistent and sufficient as the Veteran had only claimed an increase in the left ear. The hearing loss examination ordered on July 24, 2018, was unnecessary, however it was ordered, and evidence received from it needs to be considered. A request for clarification exam for the claim for entitlement to an increased evaluation for left ear hearing loss was requested April 11, 2019. The reason it was requested is because the findings from March 2018 and the findings from August 2018 are significantly different and the examiner is asked to review and explain. That request is normal procedure when there is a significant disparity between the results in two sets of testing relatively close to each other. Unfortunately when we requested the clarification in April 2019, that was not completed and so we again asked for the review and clarification in the July 8, 2019 deferral. For some reason VA ordered another hearing loss exam on July 10, 2019, but still did not request clarification about the two previous examinations. Mr. XXXXX mentions the exam in August 2018 was highly probative but, for the claim for increase for an already service connected left ear, hearing loss probative value is not at issue. The Veteran refers to the third exam in his letter as “development to deny”, which is not the case, but it was wrong to get another exam and for that we apologize for the confusion and inconvenience. What we requested in April 2019 was clarification and this clarification has not been received. We are following up on that request now. Once this clarification is received, the Veteran’s claim for increase will be reviewed. I hope this information is helpful. Sincerely Manchester, NH Regional Office -------------------------------------------------------------- Here is my response to the congressional Representative regarding the Regional response to their inquiry. The bold are my annotations regarding the real facts that I inserted into their response. Thank you for your inquiry regarding Mr. XXXXX The VA examination for hearing loss on March 6, 2018 was consistent and sufficient as the Veteran had only claimed an increase in the left ear. { The hearing loss exam on March 6, 2018 was for a different claim that was completed with a decision date of 23 March 2018 and was considered "final and binding". Several issues were awarded and several were denied in this previously rated claim. Within this claim, I notified the VA that they did not rate my diabetes disability contention even though I submitted private treatment records the day I submitted the claim. Lo and behold, Manchester discovered "late flowing evidence" regarding this "final and binding" claim and tried to "fix" the diabetes omission by creating an EP 020 claim to rate this omission. As part of this EP 020 claim, the Memphis Regional Office, during review of the claim cited several mistakes made by Manchester. Attached is a copy of the Memphis directive to Manchester. Because Manchester had my private medical records in their possession when they rated my claim, but did not use them in their decisions, this created problems in the adequacy of the C&P exams used to rate the claim. Additionally, Memphis told Manchester that they did not request all VA medical records that may pertain to my claim and they must do so. The Memphis concern was correct and Manchester was missing available VA medical records due to their error. Because Manchester did not provide all medical records to the examiners to review in determining my previous claim, this raised serious C&P exam adequacy issues because the ENTIRE medical file must be reviewed by the examiner in an adequate C&P exam. The Manchester fix to this was to follow the directive of Memphis and send me out for new C&P exams for rerating my hearing, eyes, and several arthritis and leg pain issues. They put all of these contentions as "increases" in the new EP 930 claim. Because the examiners now had access to all my medical records, this solved potential exam adequacy issues for non-availability of records. VA Manchester never gave you this background which is germane to the entire situation.} The hearing loss examination ordered on July 24, 2018, was unnecessary {as above, it may have been required due to incomplete records used in the previous hearing exam and the cure was to do a new C&P exam once the records were placed in the C-file.}, however it was ordered, and evidence received from it needs to be considered. A request for clarification exam for the claim for entitlement to an increased evaluation for left ear hearing loss was requested April 11, 2019. {When I saw this request for clarification in the VA eBenefits system, I called the contractor, VES, and requested information regarding this clarification request. VES told me, which I confirmed at multiple sources at VES, that VA Manchester told them to ignore the request for clarification. VA told them that they had everything they needed and it was "good to go". What VA Manchester did not tell you was that it was not completed because VA Manchester told VES not to do the clarification. The reason it was requested is because the findings from March 2018 and the findings from August 2018 are significantly different and the examiner is asked to review and explain. That request is normal procedure when there is a significant disparity between the results in two sets of testing relatively close to each other. Unfortunately when we requested the clarification in April 2019, that was not completed {At VA Manchester request based on information provided by VES.} and so we again asked for the review and clarification in the July 8, 2019 deferral. For some reason VA { A reason is required for any C&P exam; this supports my contention for "develop to deny".} ordered another hearing loss exam on July 10, 2019, but still did not request clarification about the two previous examinations. {This sentence is incongruent with the previous sentence. The previous sentence states they requested review and clarification on 8 July, but then goes on to state the VA ordered a new exam on 10 July, "but still did not request clarification". It appears VA Manchester wants to have it both ways.} Mr. XXXXX mentions the exam in August 2018 was highly probative but, for the claim for increase for an already service connected left ear, hearing loss probative value is not at issue. {Probative value is always an issue in the comparison of exams between 2 different examiners. The experience and capability of one examiner may be clearly superior to another. My review of the experience, education, and training of the examiner for VES and the examiner for VA Boston showed the the VES examiner's was far superior to the examiner who conducted hearing exam at VA Boston in the previous claim.} The Veteran refers to the third exam in his letter as “development to deny”, which is not the case, {This statement appears to be an opinion not based on a foundation of fact. They had everything to rate the claim, yet ordered a new exam. This is the essence of developing to deny.} but it was wrong to get another exam {Because that would be development to deny.} and for that we apologize for the confusion and inconvenience. What we requested in April 2019 was clarification and this clarification has not been received. {Because they told VES not to provide it and everything was" good to go".} We are following up on that request now. Once this clarification is received, the Veteran’s claim for increase will be reviewed. I hope this information is helpful. Sincerely, Manchester, NH Regional Office

I dropped off the following is the letter at the Regional Director's Office regarding "develop to deny" in my claim that has been pending over a year and a half. Think it will have any effect? ---------------------------------------------------------Letter text follows...... Formal objection for "development to deny" by the VA regarding a current pending claim dated 1 January, 2019 under EP 930 for an increase in disability for audio hearing loss due to the VA scheduling a new duplicate audio exam for the same pending claim as of 11 July, 2019. I have included the existing VA audio exam for this claim as attachment 1 below. Background:The facts of this objection are simple. As part of the VA claim development process for my pending increase in hearing disability, I was scheduled for, and attended, a VA audio Compensation and Pension(C&P) exam on 13 August, 2018. This examination was highly probative and conducted by an audiologist contracted by Veteran Evaluation Services(VES) for the VA. On 10 July, 2019, I received a telephone call from VES stating the the VA wanted them to schedule a new audio exam for the same claim.VES submitted the C&P exam report to the VA on 14 August, 2018. Conversation with VES and a review of my C-File indicates there were no sufficiency problems with the VES exam. All tests performed by the VES audiologist met and/or exceeded VA requirements. Based on the foregoing, there was no legitimate reason for another medical examination or opinion. Clearly, there must be compelling reasons for the VA to reschedule a previous VA exam and it must be related to the sufficiency of the previous exam. As stated above, there were no sufficiency concerns with the 13 August, 2018 audio exam. I met my responsibilities in reporting to the VA Audio Exam conducted by VES on 13 August, 2018 and the exam meets the requirements for an increase in my hearing disability rating. It should be noted that the compelling reasons regarding sufficiency apply to previous VA examinations and not private medical examinations. My previous audio exam was a VA exam, and, as such, compelling reasons with regards to sufficiency must be identified and presented prior to scheduling. The previous VA audio exam is adequate for rating and current regulations admonish regional offices not to request an examination solely to confirm evidence.The VES exam was clearly in favor of an increase to my audio disability rating. Additionally, the VES exam was far more probative than a VA audio exam that was conducted by the VA Hospital Boston in the previous claim that generated the current EP 930 claim. The VA Boston audio exam only measured puretone threshold and the Maryland CNC test. The VES exam was far more detailed and, in addition to the puretone threshold and the Maryland CNC test, VES conducted additional tests that Boston did not conduct. These tests included air conduction, bone conduction, and acoustic immittance tests.Based on the foregoing, ample VA evidence exists to determine my hearing increase disability claim and an award should be made without a subsequent and redundant VA audio exam which constitutes development to deny and is arbitrary and capricious.Based on the foregoing, the VA should cancel any new VA audio exam for this claim and rate the claim using the existing and sufficient VA audio exam performed by VES on 13 August, 2018.

I agree it is "developing to deny". This is a "redo" of the same C&P audio test that the VA conducted earlier for the same claim on 13 August, 2019. The August 2019 audio test results ( I got a copy of the VES exam) reflect 50% based on word recognition calculation. Now they want to conduct the exact same audio test again. I was rated 0% for hearing and 10% for tinnitus when I retired in 1997. Hearing got worse so I filed for the increase on 9 Jan 2018.

I filed a claim back on 9 Jan 2018 which included a request for an increase in my audio rating. The VA sent me for a C&P at a VA Hospital which was a joke and continued my 0% rating. Errors were identified in the claim and an EP 930 claim was created to redo the entire claim. I went to a VES audio exam on 13 August 2018 as part of the EP 930 redo. The exam came back with a rating of 50% for hearing loss. The EP 930 claim sat for almost a year and now the VA wants to schedule me for the same exam again. It appears they did not like the results of the VES exam. Is this "diagnosing to deny"? Do I have any options?

My gut instinct is they want this CUE reduction to go away and will get me back to 80% with the deferred conditions so they do not have to deal with that aspect for a reduction in combined rating. I will appeal the eye decision regardless; they have no clue what their own rules say. I also has 0% hearing in 1997.

I was rated in 1997 with 30% for right eye, 20% left arm peripheral neuropathy, 10% tinnitus. That was 50% This clam gave me 10% each for left and right knee with soleus tendinitis and 10% left ankle arthritis, and 30% left eye. That came to 80%. There is no way to understand how they came up with this eye decision. Their own doctors stipulated it was bilateral diplopia that is not correctable. Rules say muscle eye disabilities are rated in the eye with worst corrected vision which is my left eye.

I was a parachutist and diver. Lots of barotrauma and blast exposure, but I never ran to sick bay.

scan is here scan.pdf

yes I get it.

I am scanning it now.

Yeah, I was a "Lifer"

I claimed TDIU and they omitted that altogether also.

The rating for bilateral diplopia is very clear...but the rater somehow combined my left eye with my right eye and it got all screwed up. I will scan the decision; it will make your head hurt.

They failed to even mention diabetes type II (completely omitted) which has a strong nexus letter from a diabetes endocrinologist ( I thought it would be a shoe in) and vertigo (omitted). Both of these items show as active claims in the exalted ebenefits....

My right eye was rated for aphakia over 20 years ago and rated 30%. It is a protected rating -- can't be touched. I filled for my left eye detached retina with complications in 2017 and received a 30% rating for it under diagnostic code 6029 - aphakia. I never mentioned cataracts or absence of eye lens in the claim. Somehow the rater selected this diagnostic code and rated the left eye using the proper process for that code for the left eye even though they could have rated the left eye for bilateral uncorrectable diplopia at 30%. My hearing was service connected at 0% in 1997 and has gone to crap since then; so I filed a request for increase in the 2017 claim with a boatload of arthritis claims as a retired Marine infantryman with parachutist and scuba diver MOSs. The result of this claim was 80% combined. After the STAR, they started the EP 930. Just got the official Decision Notice: They called CUE on 5 issues for improper effective dates to my advantage. They called CUE on the way they rated my left eye and proposed my left eye be rated at 0% which reduces my combined to 70%. They deferred 15 items. They clearly stated they planned to sever my left eye 30% and say "if this reduction weer to take effect, your disabilities would be reduced to 70% disabling. Is this an official notice to reduce which starts the 30 and 60 day clocks ticking? I can't tell you how badly they screwed up this claim