The Infamous "whisper Test" On Separation From Active Duty.

[tcannonsr]

I got a full audiology hearing test during induction in 1969. Supposedly I received a "whisper test" to determine hearing loss at my 1970 discharge. I don't remember getting any "whisper test" at discharge. I think I would have remembered having a whisper test. I'm almost certain I didn't have a whisper test and this so called whisper test was the basis for denying my VA hearing loss disability claim in 1970. I think the "whisper test" wasn't performed on many veterans and the records were falsified to indicate a whisper test was administered....and it's a shame. Anyone got any information about challenging the exit whisper tests?

[broncovet]

CUE is almost always a "last resort" to win an EED claim. The reason for this is that there are often better and easier ways to obtain an EED. Why do it the hardest way first, but instead choose the easiest method first, and only if all else fails, then go for the most difficult of all, the CUE claim. Cue "raises the bar" and the Veteran no longer gets the benefit of the doubt.

The first thing that jumps out is to ask for reconsideration due to "new and material evidence." Of course you have to have new and material evidence, and I dont know if you have that or not.

To find out if you have N and M evidence, you need to check your C file and see if there is anything missing.

Importantly, you need to check the "reasons and bases" for denial. Did it actually say your claim was denied because you passed the whisper test? To attack a decision with a CUE, then you certainly need that decision, and determine if there are any errors that are 1) undebatable, and 2) based on the evidence AT THAT TIME, and 3) the error that occurred has to manifestly effect the outcome. In other words if they made a gramatical error in the decision, that wont affect the outcome, the error must be one that affected the outcome.

Lastly, and importantly, study this NVLSP guide to effective date errors. Many Vets automatically get out the "CUE" gun, when one of the other methods listed will work better. You dont take a 357 magnum to kill flies. Remember, keep an eye on your goal. Just get your earlier effective date it is not important you "prove" the VA committed CUE, just get your effective date and most of the time just forget about trying to prove the VA wrong.

http://www.purpleheart.org/ServiceProgram/Training2011/W-2%20Common%20VA%20Effective%20Date%20ErrorsL.pdf

[tcannonsr]

Thanks for the very valuable and interesting info Broncovet. I'm not into killing flies with a 357 magnum. I like to work smart, not hard, and I like to take the easiest and most effective way to achieve my goals. I'm just not experienced or knowledgeable enough in dealing with the VA to recognize that there might be an easier way to get my EED....sssooo...like you said...I got out the 357.

I'm still waiting on my C file. The easiest way to my EED may be in my C file. I will examine it carefully. Until I get my C file...everything his hypothetical.

Hypothetically...here is what I think happened with the info I currently have.

1. I filed a claim for hearing loss at or immediately after my discharge in 1970. I don't remember having a hearing test. I remember the letter denying the claim.

2. When I re-filed a claim for hearing loss in 2014, the VA sent me a letter stating I filed a claim for hearing loss in 1970, that claim was denied and the claim closed

after one year. Unless I had "new and material" evidence to support my new 2014 claim, they would render a decision within 30 days which I assume meant they

would deny the new claim.

3. I got the new and material evidence in a 2014 VA C&P hearing test and was awarded 20% disability.

4. During the 2014 C&P hearing test examination the audiologist showed me the reason my 1970 hearing loss claim was denied. She had my C file on her

computer. The paper she showed me from 1970 was a hearing test results form similar to what she was filling out that day. All the paper had on it in 1970 was

"Whisper Test" with no test results.

5. I don't remember having a whisper test in 1970. I think I would have remembered. I remember the 1970 hearing loss letter denying my claim.

6. I did not file an appeal to the 1970 denial within 1 year back in 1970.

It's pretty clear to me from the info I currently have what the VA's position is going to be on my 2014 request for an EED. It's going to be I filed a claim for hearing loss in 1970, the VA denied that claim, I didn't file an appeal within 1 year and the 1970 hearing loss claim was closed after 1 year. The ED of my new hearing loss claim is 2014. End of story.

My position has been....challenging my 1970 whisper test as medically inaccurate or challenging whether I even had a whisper test at all with a CUE claim to get my EED. There HAD to be specific procedures in administering the whisper test in 1970 rather than just stating whisper test with no test results.

Now....with your info...I need to start examining EVERYTHING in my C file for inaccuracies....dates...times...ANYTHING!. SOMETHING that would have materially changed the outcome of my case to get my EED.

I knew I had hearing loss back in 1970. I've suffered through it for years. And it's getting worse. Fortunately I now have my 20% disability but I want the VA to pay me from 1970. Why I didn't file an appeal in 1970...I was just another veteran that went away when the VA said no. I regret my decision not to appeal in 1970 but...I can't go back...what's done is done. What I can do now is try to make right a wrong.

I'll keep updating this post as I get information in like my C file. Have a nice day.

[carlie]

Now....with your info...I need to start examining EVERYTHING in my C file for inaccuracies....dates...times...ANYTHING!. SOMETHING that would have materially changed the outcome of my case to get my EED.

I knew I had hearing loss back in 1970. I've suffered through it for years. And it's getting worse. Fortunately I now have my 20% disability but I want the VA to pay me from 1970. Why I didn't file an appeal in 1970...I was just another veteran that went away when the VA said no. I regret my decision not to appeal in 1970 but...I can't go back...what's done is done. What I can do now is try to make right a wrong.

I just want to be sure I have spelled something out clearly in trying to help.

Even if a CUE error was made on the DENIAL of SC for hearing loss, in the

1970 claim, and VBA admits a CUE and changes your date of SC for hearing loss

from 2014 back to the date of the 1970 denial . . .

In order for this to materially change the outcome by providing a compensable

evaluation (or any other benefits that granting SC would have made you eligible for),

the medical evidence of record at the time of the 1970 decision, will have to show

that your hearing loss warranted a compensable evaluation at a minimum of 10 %.

All of this needs to fall in line with the schedule of rating disability's that existed

at that time.

Perhaps when you get your c-file there will be more evidence in it and you can get

an EED under 3.156c .

[tcannonsr]

Hi Carlie. I appreciate the info.

Your level of expertise is amazing....so amazing...I have trouble understanding what you said above. I'm just a good ole country boy from SC just trying to get by.

Could you break down your above post in simple terms for me...like...you know...in plain easy to understand layman's terms I can wrap my country boy head around? I would appreciate it. I'd like to understand your post but don't.

Also...what is a 3.156c? I don't have a clue what that is. It would be nice if you would explain a 3.156c is.

I mean no disrespect...but we just don't talk the same language right now. I need your help but we're going to have to come up with a common language we both can understand. May I suggest to you that maybe explaining things to me in the simplest terms would be a big help.

Thank you.

[carlie]

Hi Carlie. I appreciate the info.

Your level of expertise is amazing....so amazing...I have trouble understanding what you said above. I'm just a good ole country boy from SC just trying to get by.

Could you break down your above post in simple terms for me...like...you know...in plain easy to understand layman's terms I can wrap my country boy head around? I would appreciate it. I'd like to understand your post but don't.

Also...what is a 3.156c? I don't have a clue what that is. It would be nice if you would explain a 3.156c is.

I mean no disrespect...but we just don't talk the same language right now. I need your help but we're going to have to come up with a common language we both can understand. May I suggest to you that maybe explaining things to me in the simplest terms would be a big help.

Thank you.

Well old country boy - - - I was raised in Florida and educated in the public schools,

so I'm not too swift either.

There are lots of places for you to learn and few quick answers to most questions / issues.

I put some links below to assist you.

What I'm saying is that even if a CUE error is found and the effective date of SC reverts

back to 1970 - in order to also get monetary compensation for it back to the 1970 decision

your medical evidence of record in the 1970 decision will also need to support the hearing loss

at a compensable level, at that time.

Just re-read it a few times and it will sink in.

Here's a link to all of 38 CFR 3.156.

http://www.ecfr.gov/cgi-bin/text-idx?SID=540ac6895d17935ab934e6d87b8e34a1&node=38:1.0.1.1.4.1.60.65&rgn=div8

and here are links to 38 CFR Parts 3 & 4

Part 3

http://www.ecfr.gov/cgi-bin/text-idx?SID=540ac6895d17935ab934e6d87b8e34a1&tpl=/ecfrbrowse/Title38/38cfr3_main_02.tpl

Part 4

http://www.ecfr.gov/cgi-bin/text-idx?SID=540ac6895d17935ab934e6d87b8e34a1&tpl=/ecfrbrowse/Title38/38cfr4_main_02.tpl

[carlie]

VA / VBA verbiage is important to learn, if we don't understand it -then we can't

really understand rating decisions and just what the heck is needed to warrant

a positive decision.