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.

[Vync]

Others here on Hadit know CUE a lot better than I do, so I will defer to them. It might be possible.

Check the "Evidence" section on your SOC. They probably vaguely stated that they reviewed your service treatment records. If you had combat exposure and proof of other jobs which had exposure, that could make a difference.

An IMO from a different audiologist could help, too. The "not poorer than normal progression" appears to be the hurdle for you.

[Carl the Engineer]

I dont understand the OSHA reference.  I thought the VA had there own regulations?

Hamslice.

 

[broncovet]

Among other things a CUE error has to be "outcome determinative".  The rater could has said that you have purple hair too, but that wont matter unless they used it as a reasons and bases for denial, even then it would not be CUE.  It just would be an appealable error.  The VA has to rate you on the criteria.  They dont, of course, but when they dont, you can appeal.

I applied for Service connection for hearing loss (among other things)  in 2002.  It was denied because it "was too long since milatary service".  "Time since miliary service" is NOT a criteria for rating hearing loss. The criteria are:

1.  Current diagnosis of hearing loss, meeting the criteria in 4.85.  

2. .  In service event ( such assingle loud noise, such as a bomb) or multiple loud noises such as gunfire, jet engine noise, etc.  

3.  Nexus, or link between 1 and 2.    

[Vync]

57 minutes ago, Hamslice said:

I dont understand the OSHA reference.  I thought the VA had there own regulations?

Hamslice.

 

Hey Hamslice,
I agree with you. The VA does have their own regulations: Broncovet added the hearing loss criteria and GS added 4.19 the rules in §4.19 which explain when and when not to apply age.

On top of that, OSHA was not in Vietnam telling our fighters to wear their hearing protection

[Buck52]

If I was you I would disagree with their decision..''.NOD''

And go to a private ENT Board Certified specialist  get a new Hearing test, using the VA Guidlines or here on hadit information  of a VA Hearing Test

get a private hearing test and include the Maryland CNC word discrimation speach test  at the level prescribe by VA Regulations and ask the Dr to write you up a impression to his opinion as to Noise Induced Noise while in military could  be least likely as not the reason for this veterans  hearing loss, he state he does not Hunt or be around excessive loud Noisy since his time in the military.

Let  the New Dr  Knowabout what all you did in the military and take some of your service records for proof and proof of your MOS  if you where around loud noise in the military  then the Dr can state hid professional opinion.

if you have a hearing loss?

jmo

 

....................Buck

[TALON II FE]

"Veteran was a maintenance supervisor, with limited noise exposure at the conclusion of service"

LOL, again they show their ass and demonstrate a complete lack of understanding of the military structure.  Either that, or you are a most amazing individual, to roll in off the street and enter as a MX SUP!  Morons, plain and simple.  But, you only need to pander to your audience, so if the next guy up your chain is also clueless...well...I guess that makes you right,...right?

I would add more, but the other guys pretty much covered it all, good luck!