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.

[PCW]

I'm in the same boat as you gs. My C&P examiner didn't say yes and didn't say no to a service connection. My letter stated I enough loss to be rated (most likely at 0%), but no service connection. This afternoon I have an appointment with an outside Audiologist to try and get an IMO. My entrance and exit exams show a loss, the C&P shows a loss, and my MOS got me 10% tinnitus. I just need someone to give me a "at least likely as not" in writing. Now I have to spend my own dime when the RO could have looked at "all" the evidence and made a 0% determination. And the VA wonders why the appeal backlog is out 3-4 years. Btw, I plan on doing a reopen/reconsideration with new evidence. 

[Gastone]

What was your MOS, any combat exposure noted in your records or on your DD-214, CIB or CAR Award?

What did you say about Noise Exposure and your Post Service Employment? I may have missed it, No Claim for Tinnitus? Many Nam Combat Vets get a 10% SC for Tinnitus and a SC Hearing Impairment rated at 0%. The VA computer Audio testing results are tough to dispute. You can actually be very Hard of Hearing, if your word recognition test results are over 90% even with guessing, you lose.

If you choose to see a Non VA Audiologist, just be sure they use whatever the Current VA C&P Protocols require before wasting any money on the test.

I think it used to be the Maryland what ever and the word recognition had to be from a recording, not the tester saying the words.

Semper Fi

[gs106]

PCW, good luck.  Post the results of your civilian test.  

Gastone, I filled a NOD through my DAV RSO and can't do anything until the DRO review.  I also have a pending claim and don't want to file for tinnitus or anything else until the open claim is decided sometime in the distant future.  I'm not sure I want to file for tinnitus unless it gets worse or I find that my dizziness is somehow connected to the tinnitus. VA said the dizziness (claimed as light headiness by the DAV rep) wasn't service connected even though my STR has several pages of tests trying to determine the cause.  I had several MOSs...95B (MP) in Vietnam, a few signal....05F(radio operator), 31C (radio/teletype), 26Q; logistics:  76Y (supply) , 63B,(mechanic) 63Z (maintenance supervisor).  The 95B may as well have been 11B during the 68 TET offensive and mini TET in May 68   The guy conducting the hearing test agreed that my hearing got worse while on AD but that it was because of age and not service connected.  Did I mention that he was a jerk?...stopped in the middle of the test and said "how did you avoid Vietnam since you are the right age to have been there".  Of course I told him that I didn't avoid Vietnam.

 

[Gastone]

Your at 80%, so anything less than a 30% for a new condition, won't get you to 90. You requested a DRO Review instead of a Hearing, why?

With this DRO Review Request, what New & Material Evidence (Post Denial Decision) that was not available to the original rater, did you submit? Just thinking or feeling you got short-changed at the C & P won't cut it.

I'm sure your VSO rep discussed the VA Regulation requiring N & M Evidence (New Post Denial Decision) being submitted well in advance of the DRO Review, failure to do so will result in an Administrative Denial.

As to the OSHA reference, as with all branches of Armed Forces, OSHA puts out a Noise Exposure Chart; listing Exposure by civilian job description. A reasonable explanation could be that you possibly had many years of employment, Post Active Duty, in a job that had a much higher Noise exposure than your Military MOS.

My Bro-inlaw got the Tinnitus SC of 10%, as a result of being stationed in Germany during Nam as an Army office clerk for 2 years. His MOS didn't cut it, however he was on the Commands Rifle team, and that being in his service records, sealed the deal. Constant exposure to Rifle Fire while training.

Semper Fi

[Gastone]

Tinnitus can be in 1 ear or both, no matter, straight 10% SC; no Bi-Lateral Factor.

Most Nam Vets, including myself, didn't experience noticeable symptoms of Tinnitus; for years after Discharge. When it became noticeable, it was constant, not intermittent. In my case, early on, I would only notice the constant light hum early in the morning when no other sounds were intruding.

As time went on, it got louder to the point, where it's always noticeable. If your buzzing, humming or ringing is intermittent, maybe you need to see a VA ENT. Something else could be going on and needs to be checked out.

Semper Fi

[lotzaspotz]

There is no cure or treatment to eradicate tinnitus.  Also, there is no objective test to diagnose tinnitus.  You'll read in cut and paste macro statements wordage in Rating Decisions that implies such a thing exists, but it does not.  It's pretty much your word for it.

 

Edited January 14, 2016 by lotzaspotz