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.

[gs106]

Gastone, I am a novice at this, that is why I am asking for opinions from people with more experience on this site.  I have also relied heavily on DAV for guidance and pretty much did what they advised me to do to this point.  When I retired in 2005,a DAV rep was available during my out processing at Ft McPherson, GA.  She took my military medical records and went through them and assisted with filing a claim.  She told me that she would take the claim, along with my medical records to VA.  Several months later I inquired about the status of my claim.  Both VA and DAV said there was no record of a claim and that they didn't have my medical records.  I contacted my congressman and after several letters with the congressman's staff parroting what VA told them, I contacted VA in Washington, DC.  Two weeks later I got a call from VA stating that they had found my records and was processing my claim.  I went through the C & P exams and got the decision that I was rated at 40% but there was no mention of my cervical spine issues.  I sent VA an email asking why they didn't consider my cervical spine.  A few days later, I received another decision apologizing for their error and awarding me 20% for cervical and a total rating of 60%.  A few years later, my right shoulder had gotten much worse and I went to DAV and asked for assistance in requesting an increase.  The claim for increase was denied (same C & P examiner that did the original exam).  This is getting too long so I will fast forward to 2014 when I again decided to risk going back to DAV for assistance.  The RSO seemed very knowledgeable and advised me to request an increase and file for other disabilities.  Some were granted and some denied but increased to 80%.  He advised me on the NOD with DRO review because he agreed that I should be service connected for hearing loss and should be rated higher on my knees.  The original DAV rep that went through my records didn't mention filing for cervical radiculopathy even though my STR was filled with tests to determine what was causing numbness and tingling in my arms and hands.  In addition to the cervical radiculopathy, I had also been diagnosed with ulnar neuropathy. I found this site a few months ago and have learned quite a lot from reading posts on here.  At his point, it is what it is and I am waiting for the open claim to be decided and then make a decision as to what my next step is.  This has taken a very long time to type because of taking breaks for numbness and pain but wanted to give you as much info as I can so that you will better understand my question.  The following is from VA's website.

VA has interpreted its authority under section 7105 as allowing claimants who filed a NOD to elect either a traditional appeal to the Board or a first level of de novo review within VBA by a Decision Review Officer (DRO). If a claimant elects a DRO review, a VBA employee who processes appeals readjudicates the claim and issues a decision granting the benefits on appeal or a SOC confirming the prior decision. A claimant who elects a DRO review and remains dissatisfied with VA’s decision may still file a substantive appeal to the Board and receive another de novo review of the claim.

A claimant may submit additional evidence to support an appealed claim at any point in the process, regardless of whether the appeal is pending at VBA or the Board. If additional evidence is received after the claimant files a NOD but before VA issues the SOC, the evidence will be reviewed by VBA and incorporated into the SOC (if VBA cannot grant benefits). However, Congress did not prescribe the procedures for processing evidence that VBA receives after it issues a SOC in an appeal. Accordingly, under VA regulations, VA will issue a supplemental SOC in these claims and will wait 30 days for the claimant to respond before sending the appeal to the Board. Each time the claimant submits additional evidence, VBA must reconsider its decision on the appealed claim and conduct any necessary development of the claim under its duty to assist the claimant. If VBA’s reconsideration of the appealed claim does not resolve the disagreement, it will issue another supplemental SOC.

 

[gs106]

I filed a claim for tinnitus even though I had submitted a NOD for hearing loss.  I had the C&P exam yesterday and had the same guy again.  He went through the entire DBQ again even though the claim was only for tinnitus.  I confronted him about his "how did you avoid Vietnam" comment and his attitude changed drastically.  He kept apologizing until I was back in the lobby.  I'm pretty sure it won't change anything about the hearing loss being related to age and not noise exposure but at least he did note that I served in Vietnam and he also asked me what all my MOSs were which I don't recall him asking the first time.  
 

[Andyman73]

He needs to be strung up, drawn and quartered.

[Buck52]

gs106

Maybe  some  Vietnam Veterans set his ass straight.

Some VA Examiners just don't want Veterans getting what they deserve.

 

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

[Andyman73]

Buck,

Yah, we got several at my VAMC.  One of them is even a Vet, too.  That guy really makes me sick.  Like he has no SCDs so, he goes out of his way to minimize the effects of other Vet's disabilities. 

One of my co-workers experienced that particular examiner, said he almost lost it, was so close to giving in to his homicidal urges.  As soon as he told me, I asked if it was so and so, he said yes, how'd I know? I told him that guy did me dirty, too.

And don't get me started on that slimeball MH examiner...they can send him to N. Korea.

Andy

[Buck52]

I roger that Andyman

The bad part about getting a bad C&P Examiner/that lies is, even if you NOD and get a DRO Hearing and win your claim or claims , Having to rebute that C&P Examiner the information he puts in the veterans C&P Exam Report is still going to be in his C-FILE  They can't take it out.

  but what he said is never supposed to be used against the Veteran once the Veteran is Adjudicated from that particular claim.