Need Help - Which Doctor Takes Precedence?

[TiredCoastie]

Hello everyone and Merry Christmas!

I'm in the final stages of putting together a NOD - and thanks to all those who helped me thus far. I'm taking AskNOD's advice and putting appropriate CFRs in my rationale for why the RO wrongly denied service connection. However, I can't find an obvious CFR cite that covers which doctor they should listen to. In my situation, my ENT filled out a DBQ that said that my hearing loss was related to military service. The RO, relying on audiologists, is using the argument that I had hearing loss upon entering the service and that the level of increased loss was not due to military service - which for me included loud engine noise, pistol, rife, auxilitary or main battery fire, helicopter operations, etc. If my ENT said that it was, in his opinion, related to military service shouldn't the RO take that opinion over VA or QTC audiologists?

Of course, as AskNOD has so aptly put it, the DBQ form is somewhat short of a nexus letter. I can go back to my ENT and ask him for a full nexus letter to include with form 9.

But first of all, is there a CFR cite that discusses which doctor to choose? I sure can't find one...

[Slowlane]

Sure seems like you should get the "at least as likely as not" benefit of the doubt with your ENT weighing in on this.

[TiredCoastie]

Well, to close out this story - I did approach our ENT again several months ago after filing my NOD. He relooked at my numerous hearing test results and determined that, based on what he was seeing, I did not have a solid argument for hearing loss caused by the service after all. Then, he advised me to drop pursuit of SC for hearing loss as it might jeapordize the VA continuing to provide hearing aids to me. (Our ENT doesn't understand the VA medical thresholds and at what point medical care gets paid for - the VA didn't somehow think I needed hearing aids until I was rated at 60% and had an outside hearing test in hand.) But without the ENT's further backing, I'm going to back off pursuit of the hearing loss. Our ENT is one of the best and most respected in our region.

Meanwhile, in the latest claim decision, I was denied SC for HL again. This time, they said that the ENT didn't mark that he reviewed my SMRs, which he did but did not check the box on the DBQ.

Way I look at it is that God doesn't want me SC'd for HL. Besides, I've got the care I need for them, and HL isn't very likely life threatening. Stuff that other vets have like IHD, the TIAs I get - now those are life threatening and more than worth the battle to get them SC because of the DIC impacts later.

[VetlawUS]

After reading your post, you have an issue you need to deal with first before you spend the money on an audiologist or medical opinion.

If they are denying your claim on the grounds that your hearing loss pre-existed service, then you need to clear that up.

The VA frequently denies claims on these grounds - and they FREQUENTLY screw up the presumption of soundness. Unless your MEPS doctors conducted a hearing exam that showed a LOSS prior to service, then you are entitled to the Presumption of Soundness, and the VA can only rebut that by showing:

1) That your hearing loss was NOTED on a MEPS physical exam, and

2) That your military service did NOT aggravate the hearing loss.

What they are doing is what the Courts laid into them for in the Horn v Shinseki case. Read about it here:

http://www.attiglawfirm.com/8steps/step3/va-presumption-of-soundness/

and here:

http://www.attiglawfirm.com/shoot/veterans-disability-benefits-in-horn-v-shinseki-the-court-of-appeals-for-veterans-claims-cavc-calls-out-va-on-failure-to-follow-the-law/

Make the argument that you are entitled to the presumption of soundness in line with the Horn decision, then attack their Compensation and Pension Exam opinion using these tips and tools.

http://www.attiglawfirm.com/move/va-c-p-exam-results/

Most important - whatever expert you get, make sure that they review the entire C-File, and the C&P Examiner Opinion, and discredit the C&P Examiner's opinion. The VARO may ignore all that, but the BVA likely will not.

Hope that helps a bit....from what you are saying, you have to kick out that "pre-existing condition" argument before any expert opinion really matters.

Chris

[TiredCoastie]

After reading your post, you have an issue you need to deal with first before you spend the money on an audiologist or medical opinion.

If they are denying your claim on the grounds that your hearing loss pre-existed service, then you need to clear that up.

The VA frequently denies claims on these grounds - and they FREQUENTLY screw up the presumption of soundness. Unless your MEPS doctors conducted a hearing exam that showed a LOSS prior to service, then you are entitled to the Presumption of Soundness, and the VA can only rebut that by showing:

1) That your hearing loss was NOTED on a MEPS physical exam, and

2) That your military service did NOT aggravate the hearing loss.

Hope that helps a bit....from what you are saying, you have to kick out that "pre-existing condition" argument before any expert opinion really matters.

Chris

Thanks, Chris. I've been going after this exact problem since I was initially denied on my first claim. My MEPS exam did include a hearing test which showed mid-range hearing loss. I've contended that this initial exam was inaccurate. My hope was that my ENT would look at the results, see that my hearing improved after I entered the service, giving me the argument that the test was clearly faulty. My ENT with his audiologist walked me through the hearing test results. They showed me that, for whatever reason, by the time I had my next audiology exam after MEPS, my hearing pretty much matched my intake exam.

This may seem strange to have this memory reaching back almost 30 years to that MEPS exam, but I remember being frustrated because the booth was noisy.

This particular disability was a matter of making something right rather than a distinct "gotta have it" service connection decision. I still believe that my time in the service damaged my hearing. But, by God's grace, I'm receiving the care I need to be able to hear better without my hearing loss being service connected. And I've got bigger issues that I've got to fight, like my TIAs. In the end, hearing loss will be a nusiance for the remainder of my life. The underlying condition that's causing my TIAs, which is without a doubt service connected, may well end my life.

[lotzaspotz]

Thank you Chris. My first question after just seeing this thread is what the veteran's entrance physical said or didn't say about hearing loss. If hearing loss is not noted on the physical, the veteran's hearing was assumed to be just fine upon entrance into service. Was it noted on the separation physical?

There's a recent discussion on this very topic at Facebook by The Attig Law Firm in Dallas that is worth review. It not only discusses presumption of fitness for duty, but also discusses aggravation of existing conditions by military service if the veteran's condition was acknowledged at the entrance physical but the veteran was accepted for service, anyway. It is relevant to other conditions, as well. The veteran's entrance physical is the first piece of evidence a veteran should get his/her hands on, and the separation physical the second piece, to provide the foundation for the rest of a disability claim.

[Fat]

I think a complete detailed examination or opinion from a licensed physician would carry equal weight as a C&P examiner.