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.

[pwrslm]

If the C&P examiner stated that he/she examined your SMR and failed to account for all of the information in the SMR, you should challenge the examination.  If they omit the facts at hand, it is falsification of medical records (the examination is a medical record).  The rater is also obligated to search your SMR's for the history of the condition, and if they fail to acknowledge and address it, it is CUE if the facts omitted would have changed the rating decision.

I'm putting together my complaint to the VAOIG for 2 C&P exam's now for omissions which affected the outcome of my rating.  Falsification of medical records is a criminal act under Federal Laws.  If we all put in complaints on this issue, we will push them to correct these omissions which cost veterans millions in time and benefits over the past decades.  We deserve competent examinations when we are sent by the RO.  Failure of examiners to provide that competent level of care is negligence, and that is malpractice.

[lotzaspotz]

If you suffer from tinnitus, you should claim it.  It's a separate claim from hearing loss.  Every little bit helps.  On days when it's particularly loud and annoying, you'll wish you did.

 

[Chuck75]

On 1/11/2016 at 4:33 PM, Hamslice said:

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

Hamslice.

 

It's being used to supposedly document what "normal" hearing is for a particular individual, and the conditions and circumstances.

It certainly can be argued both for and against the use of the OSHA reference.

I'm also aware that the typical VA C&P related hearing test may not really conform to the regulations. Shortcuts seem to be common.

The testing also does not usually use more accurate methods that are available (in theory) to determine the actual hearing thresholds.

All of that aside, hearing loss must be significant before the VA gets even faintly interested. It sounds like the veteran has some sort of loss that makes him think that hearing aids may be in his future.

Tinnitus can be more of a problem than just basic hearing loss.

As an "up in years" veteran, even though I have some indications that my hearing isn't as good as it once was, I'd have a hard time proving that there is any relation to service, even though I once was a loader on Navy AA gun mounts.

Edited January 20, 2016 by Chuck75

[Buck52]

Here is what a veteran needs to take to his/her  C&P Exam.

Preparing for the C&P Exam

Make sure to bring the following to your C&P exam:

– Complete medical history of the conditions to be examined in the C&P Exam, including all doctors' reports and tests. You may have already submitted this information, but bring it to your C&P Exam anyway just in case the physician hasn't seen it or needs any of the information in it.
– Specific knowledge of the exact information and tests the Rating Authorities need to properly assign a VA Disability Rating to each of your conditions. You can Find Your Conditions on our site to figure out exactly what is needed to rate them.   

It is essential for you to be proactive at your C&P Exam. All VA Physicians have access to C&P Exam Templates that guide them through the exams to ensure that they record the correct information, but while we’d like to think the system works perfectly, there is far too much proof that it doesn’t. A contributing cause to the VA’s massive backlog is incorrect or incomplete data recorded in the C&P Exam reports. This causes the cases to be returned, after months of waiting in line, for another C&P Exam to be conducted to provide the missing/proper information. If you come properly prepared to your first C&P Exam, you can help make sure this doesn’t happen to your case.  

Even though it shouldn't be, make it your job to ensure that the C&P Exam physicians (1) have all the information they need and (2) perform the proper tests at the C&P Exam.

For example, supraventricular arrhythmia (a heart condition) is rated on how many episodes of arrhythmia are recorded every year. The type and quantity of medication, etc., doesn’t matter for rating. All the physician must record during the C&P Exam is the number of episodes that were properly documented during the past year. Extra evidence never hurts, but if the physician fails to record the necessary info, then the case will have to be sent back.

A C&P Exam does not need to be excessively long to get a proper rating. All that needs to happen at the C&P Exam is for the proper information to be recorded.  

Just be prepared and proactive, and your C&P Exam should go well.

 

[Navy04]

GS

 

The Doc is right on the money when he lists what your hearing was at the end of service, and what it has become since you left. As far as Hearing Loss, it is dang near impossible to get a rating over 0%.  I have severe loss in R ear, and Mild in L ear and that is at 33 yr old. The VA rated me 0% for Both, and 10% Tinnitus which I did not even apply for.  I have helped multiple Vets with Hearing Aids in Both Ears, and only knew 1 that got 10% for hearing loss in both ears, and that Guy just about had to read lips. Sorry to hear what you are going thru. Good luck and keep us posted.

[gs106]

Thanks everyone, I appreciate all the responses and advise when given. My reason for filing for hearing loss was to get it service connected...I don't think it is bad enough to warrant compensation at this point.  There is no doubt that it is service connected and the person conducting the test was clearly wrong (in my opinion) in using age and OSHA regs in his opinion that it isn't service connected.  I didn't claim tinnitus because it isn't constant and varies from a low hiss to a high pitch sound very similar to the loudest noise you get during the hearing test.  I never sought treatment while I was on active duty.  I was having a lot of dizziness and underwent numerous tests to determine the cause.  The doctors notes in my records in reference to the dizziness states "does have tinnitus at times".  That same statement was annotated on two occasions but I doubt that it is sufficient to grant service connection if it does get bad enough to file a claim.