C & P Examiner Quoted OSHA Reg and My Age On DBQ

[gs106]

Is it appropriate for a C & P examiner to quote an OSHA regulation in reference to hearing loss and age?  I had the C & P exam in June 2015 and was denied service connection.  I was found to have hearing loss during my retirement physical and on several previous physicals which was noted by the examiner.  The idiot examiner only considered noise exposure during my final year of service!    

Excerpt of DBQ:

If present, is the Veteran's right ear hearing loss at least as

likely as not (50% probability or greater) caused by or a result of an event in

military service? No

Rationale (Provide rationale for either a yes, no answer or speculation

reason): The veteran's e-file was reviewed for this opinion. Within

the veteran's service treatment records are audiometric test results

dated 1-25-2005, in the veteran's final year of service. Veteran was a

maintenance supervisor, with limited noise exposure at the conclusion

of service. Result do indicate a hearing loss for the right ear. When age

correction factors are applied, per 29CFR1910.95 Appendix F of the OSHA

hearing conservation regulations, the resultant hearing level are not

worse than expected for the veteran's age at the time of testing.

Thus, the veteran's hearing levels are not poorer than beyond normal

progression. Therefore, it is the opinion of this examiner that the

veteran's right hearing loss is less likely than not a result of

military noise exposure.

[broncovet]

What are your CNC "average" decibel losses and speech discrimination?  It sounds like he is saying your hearing is very close to normal.  If your decibel loss is less than 20, that is considered normal.  Even 25 probably wont result in SC.  Mine is 55, which is considered "moderate to severe", and I wear hearing aids, with my speech discrimination about 88%.  

[gs106]

Thanks Broncovet, it has been some time since I averaged it.  I believe it was about 37.  I'm not expecting compensation, just service connection because it is getting worse.  My retirement physical forms have the statements "bilateral hearing loss" and "routine noise exposure".  I was also diagnosed with tinnitus while on AD but didn't claim that.  My question is:  is it appropriate to use OSHA regulations and age in determining service connection?

[broncovet]

VA rates hearing impairment, if service connected, in a chart on 38 CFR 4.85.  The chart reflects BOTH average CNC loss and speech discrimination.  

    Like yourself, when I first applied, I did not want to find my records and check.  However, if you are serious about getting VA benefits, you will need to get your records and check them out.  

    If your average CNC loss is less than 35, (unless you have poor speech discrimination) then you are unlikely to get more than 0% for hearing loss.  Its a matter of degree, if service connected.  If you dont meet the minimum, the VA will likely say you dont have a compensable hearing loss.  

    You see, the VA compensates you for "the average earnings impairment".  If you can hear most stuff, but just have to ask to repeat once in a while, the VA does not consider that compensable.  The comp chart pretty much "begins" at 40:

38 CFR 4.85 - Evaluation of hearing impairment.

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§ 4.85 Evaluation of hearing impairment.

(a) An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids.

(b) Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.

(c) Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.

(d) “Puretone threshold average,” as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in §4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.

(e) Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect.

(f) If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter.

(g) When evaluating any claim for impaired hearing, refer to § 3.350 of this chapter to determine whether the veteran may be entitled to special monthly compensation due either to deafness, or to deafness in combination with other specified disabilities.

(h) Numeric tables VI, VIA*, and VII.

[64 FR 25206, May 11, 1999]

[gs106]

Thanks again Broncovet.  I have thoroughly studied the above information and am probably NOT eligible for compensation...just acknowledgement of SC.  In my humble opinion, they can NOT use age in determining service connection.  I am just seeking opinions from those who have much more knowledge/experience than I have.

 

§4.19   Age in service-connected claims.

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.

Contradiction:

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

[Vync]

3 hours ago, gs106 said:

Thanks again Broncovet.  I have thoroughly studied the above information and am probably NOT eligible for compensation...just acknowledgement of SC.  In my humble opinion, they can NOT use age in determining service connection.  I am just seeking opinions from those who have much more knowledge/experience than I have.

 

§4.19   Age in service-connected claims.

 

Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. Age, as such, is a factor only in evaluations of disability not resulting from service, i.e., for the purposes of pension.

 

Contradiction:

 

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

 

Hey GS,
Did you receive a decision letter/SOC from the VA yet? If they do deny you due to age, then 4.19 might be promising. I'm not an expert on hearing claims, but it seems to me based on the text you quoted from 4.19, it looks like it only applies for veterans filing for pension, not disability ratings. Note (3) and (2) look like they would only apply for spine issues, but only in "exceptional" cases. Either way, it might be worth it to try filing from the tinnitus perspective.

Don't forget to take a look at other job roles you had while in the military where you might have been routinely exposed to loud noise or perhaps briefly exposed to extremely loud noise. Keep in mind that there are a lot of older veterans with perfect hearing.

Below are a couple of BVA decisions where the veterans won their hearing related appeals. These also mention the OSHA regulation quoted by your C&P doc.

http://www.va.gov/vetapp14/Files6/1452559.txt

http://www.va.gov/vetapp15/Files1/1504947.txt

[gs106]

Thanks Vync.  I filled a NOD through the DAV RSO and requested DRO review.  I talked with the RSO last week and he said the DROs are working on 2013 backlog so it will be a while before I hear anything. (mine is mid 2015) I was routinely exposed to very loud noise throughout my career.  Ear plugs were unheard of when I went through basic and much of my career.  Vietnam wasn't the quietest place I have been.  

I'm wondering if it could be a CUE since the examiner used age in his opinion that it wasn't service connected.