Tinnitus Denial. Need To Appeal

[SgtE5]

First time poster but have reading Hadit for over a year. Here's my situation. I filed for Tinnitus June 2015 and just received my denial letter. I see many errors in the decision. Did not follow VA training Letter 10-02. Did not consider my IMO. And I don't think they actually read the whole C&P exam notes. Also, doesn't look like the examiner had my SMR. Only my VA records. I am in the VA medical system. No service connection. I am not claiming HL. Only tinnitus. I will omit the hearing part of the exam but include her opinion on it. The examiner didn't even want to look at my smr that I brought with me. Bold parts is what I feel is relevant to an appeal.  I entered in to VA system in 2002 and complained about tinnitus soon after. In '92  I didn't know what tinnitus was when I eas. There was no such thing as after deployment questionnaires or on exit exams. Basically it was, ok your done. Next.

C&P

HL opinion

Today's evaluation, Veteran had normal hearing sensitivity AU.
The claimed condition/symptom hearing loss and tinnitus is less likely as
not (less than 50/50 probability) caused by or a result of noise
exposure in the military for AU.

Rationale for Opinion Given: There is insufficient evidence from
longitudinal studies in laboratory animals or humans to determine
whether permanent noise-induced hearing loss can develop much later in
one's lifetime, long after the cessation of that noise exposure.
Although the definitive studies to address this issue have not been
performed, based on the anatomical and physiological data available on
the recovery process following noise exposure, it is unlikely that such
delayed effects occur". Reference: 22 Sep 2005 Institute of
Medicine's landmark study: Noise & Military Service: Implications for Hearing
loss and Tinnitus.
In the absence of an objectively verifiable noise injury, the
association between claimed tinnitus and noise exposure cannot be
assumed to exist. Tinnitus may occur following a single exposure to
high-intensity impulse noise, long-term exposure to repetitive
impulses, long-term exposure to continuous noise, or exposure to a combination of
impulses and continuous noise. However, you would have to accept the
scientifically unsubstantiated theory that tinnitus occurred as a
result of some latent, undiagnosed noise injury. IOM never stated that
tinnitus could result from undiagnosed noise injuries. In most cases, tinnitus
is accompanied by measurable hearing loss. We recognize that the audiogram
is an imperfect measurement. Nevertheless, it is accepted as the
objective basis for determining noise injuries.

HISTORY:
Active Service Period: Marine Corps EOD: 06/10/1988 RAD: 06/09/1992
(1984-92) (combat)
Military specialty: Motor Vehicle Operator
NOISE EXPOSURE HISTORY:
Military Noise Exposure Hx: ship board noises, heavy trucks, explosions,
and small arms fire: sometimes protected
Occupational Noise Exposure Hx: computers (no loud noise) semi-truck
driver noises
Recreational Noise Exposure Hx: carpentry (unprotected)

SECTION 2: TINNITUS

--------------------
1. Medical history
------------------
Does the Veteran report recurrent tinnitus: Yes
Date and circumstances of onset of tinnitus: Veteran complains of
decreased hearing AU has to lip read to understand conversation. Veteran
also complains of constant non-disabling tinnitus AU worse AD with onset
of late 1980s. He does not recall a specific incident that preceded the
onset of tinnitus. - (This is a lie. I gave her a number of incidents.)
2. Etiology of tinnitus
-----------------------
Less likely than not (less than 50% probability) caused by or a result of
military noise exposure.
Rationale: Requested exams currently on file:
Marine Corps
EOD: 06/10/1988
RAD: 06/09/1992
DBQ AUDIO Hearing Loss and Tinnitus:
The Veteran has important information in his or her electronic claims
folder in VBMS and Virtual VA. Please review both folders and state that they were
reviewed in your report.
The Veteran is claiming that his or her tinnitus is related to exposure to
hazardous noise. Please fill out the Direct medical opinion template in the
DBQ and review the following tabbed evidence. Your review is not limited to
the evidence identified on this request form, or tabbed in the claims
folder. If an examination or additional testing is required, obtain them
prior to rendering your opinion.
POTENTIALLY RELEVANT EVIDENCE:
NOTE: Your (examiner) review of the record is NOT restricted to the
evidence listed below. This list is provided in an effort to assist the
examiner in locating potentially relevant evidence.
Tab Certificate of Release or Discharge From Active Duty (DD Form 214 in
VBMS): MOS: Motor Vehicle Operator dated 06/06/2015
Tab STR-Medical Photocopy (STRs in VBMS): See pgs 7, 26, 44, 67, 80 -
active
problems - subjective tinnitus dated 06/07/2015
Additional remarks for the examiner:
Veteran's MOS is Motor Vehicle Operator
Noise Exposure Listing shows moderate noise exposure
CONFIDENTIAL Page 19 of 34
OPINION RATIONALE:
Claim File reviewed today and revealed the following:
There were no STRs in the VBMS or VVA or physical C-File available for
review.
Medical Note: 28 May 13: ophthalmology surgery: c/o tinnitus
CPRS reviewed:
Audio evaluations covering the period of 2007-08 indicated that Veteran
has normal hearing sensitivity AU with excellent word recognition scores for
AU.
Statement of Credentials:
Credentials of Examining Audiologist: Ph.D. CCC-A with current and active
Florida state licensure.
Pertinent Evidence of Opinion Includes: REFERENCES: September 22, 2005
Institute of Medicine Report Noise and Military Service: Implications for
Hearing Loss and Tinnitus, Consensus Statement on Noise and Hearing Loss,
Educational Resource Guide: Noise-induced Hearing Loss, National Institute
on Deafness and Other Communication Disorders, 2000.Noise-induced Hearing
Loss, National Institute on Deafness and Other Communication Disorders,
1999.
Review of the Record:
There were no STRs in the VBMS or VVA or physical C-File available for
review.
Findings/Opinion
There were no STRs in the C-File so examiner unable to assess
Veteran's hearing status while he was on active duty to determine if there was a
pre-existing hearing loss or if there were any significant threshold
shifts at time of separation. Audio evaluation conducted in 2007 indicated that
Veteran had hearing WNLs AU (with very sensitive thresholds) almost 20
years post active service.
Today's evaluation, Veteran had normal hearing sensitivity AU. The
claimed condition/symptom hearing loss and tinnitus is less likely as not
(less than 50/50 probability) caused by or a result of noise exposure in
the military for AU.
Rationale for Opinion Given: There is insufficient evidence from
longitudinal studies in laboratory animals or humans to determine whether
permanent noise-induced hearing loss can develop much later in one's
lifetime, long after the cessation of that noise exposure. Although the
definitive studies to address this issue have not been performed, based on
the anatomical and physiological data available on the recovery process
following noise exposure, it is unlikely that such delayed effects
occur".
Reference: 22 Sep 2005 Institute of Medicine's landmark study: Noise
& Military Service: Implications for Hearing loss and Tinnitus.
In the absence of an objectively verifiable noise injury, the association
between claimed tinnitus and noise exposure cannot be assumed to exist.
Tinnitus may occur following a single exposure to high-intensity impulse
noise, long-term exposure to repetitive impulses, long-term exposure to
continuous noise, or exposure to a combination of impulses and continuous
noise. However, you would have to accept the scientifically
unsubstantiated theory that tinnitus occurred as a result of some latent, undiagnosed
noise injury. IOM never stated that tinnitus could result from undiagnosed noise
injuries. In most cases, tinnitus is accompanied by measurable hearing
loss. We recognize that the audiogram is an imperfect measurement.
Nevertheless, it is accepted as the objective basis for determining noise
injuries.
3. Functional impact of tinnitus
--------------------------------
Does the Veteran's tinnitus impact ordinary conditions of daily life,
including ability to work: No
4. Remarks, if any, pertaining to tinnitus::
--------------------------------------------
No response provided
NOTE: VA may request additional medical information, including additional
examinations if necessary to complete VA's review of the
Veteran's
application.

First of all, she did not have my SMR to actually know what they said. Tinnitus isn't in there though. But my hearing test would have showed a decline (Not to VA standards) but a decline over the 8 years I was in. Would also show that I was in explosive ordinance disposal. All she did was copy somebody's else opinion on the Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. Don't think she even read the book. 

Her is the kicker, I went to a private audiologist and laid out my SMR and VA medical records for her to see and here is her conclusion:

Patient was seen for concern of constant bilateral tinnitus (worse right ear) that began in the late 1980's. He has a
significant history of occupational noise exposure from his service in the Marines as a motor vehicle operator and marksmanship
instructor. He was also exposed to noise aboard ships, gunfire during basic training, and from helicopters. He also reported
intermittent aural fullness and intermittent imbalance (not true vertigo) that occurs every few months for a few seconds. His
previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years. He attributes
the tinnitus to his history of noise exposure. He denied familial hearing loss, hearing difficulties, and otalgia.

Otoacoustic emissions (OAE) testing was performed today to assess outer hair cell integrity. Testing revealed some
absent high frequency OAEs bilaterally (see table above), which are most likely related to the patient's history of military
acoustic trauma and provide explanation for the patient's tinnitus. He was advised to avoid loud noise and wear hearing
protection to prevent further damage.

On the list for evidence reviewed in the denial, there is no mention of the IMO.

In the VA training letter 10-02 section E Tinnitus paragraph 4 it states:

4. What is its onset? The onset may be gradual or sudden, and individuals are often unable to identify when tinnitus began. Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs. Therefore, delayed-onset tinnitus must be considered. This adds to the difficulty of determining the etiology or precipitating cause.


So to copy in her opinion that it is unlikely such delays occur contradicts VA letter 10-02.

Also, I have read the book 22 Sep 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus. It does state:

The impulsive and intermittent nature of many military noise exposures (e.g., gunfire, plane launches and landings, tank operation, 6-month shipboard deployments) adds an element of uncertainty to considerations of exposure and effect. For example, “high noise levels” for about 3 hours of a 14-hour period have been described as typical of high-tempo flight operations on an aircraft carrier (Yankaskas and Shaw, 1999). As discussed in Chapter 2, intermittent noise exposure may permit recuperation, thus ameliorating to some extent the hazardous effect of noise exposures. However, military personnel may also have noise exposures that are prolonged compared to those of civilians. At sea, for example, sailors are exposed to ambient shipboard noise continuously and may encounter potentially hazardous noise levels even in their sleeping quarters, giving their auditory systems no opportunity for short-term recovery (Yankaskas and Shaw, 1999; Yankaskas, 2001, 2004).

Which I was aboard the USS Guam for 8 months during Desert Shield/Storm. My units quarters was top level right under the flight deck.

Also in the denial letter it states that the evidence don't show a current diagnoses for tinnitus. I call fowl on that. Per my VA medical records I was diagnosed with subjective tinnitus  (ICD-9-CM 388.31) with a date of 00/00/2004 and again 06/13/2006

There is also a line for evidence review that says: Memorandum of unavailability of service treatments records, VA records management center. Dated March 15, 2016.

Apologize for long message but wanted to give all information I could.

So how should I proceed in this matter? Do you think that a DRO hearing is the route to go with the IMO that was not considered?


Edit: Also in the Duty MOS For Noise Exposure, my MOS has a moderate noise exposure. And then says If the duty position shows to have a "Highly Probable" or "Moderate" probability of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event. I'm not sure how to understand that. Surely it can't be saying it's an automatic.

Edited April 4, 2016 by SgtE5

[Gastone]

Do you have a CIB?

Most Vets I know, that have a Tinnitus Rating also have a Hearing Rating SC 0%. We all were able to at least "Guess" 90+% of the words on the Recorded Maryland Word Recognition Test. So even with our Hearing loss, the "Word Recognition Score," limited the Rating to 0%.

You might want to get all your New & Material Evidence in your possession, prior to filing your NOD. For a DRO Review or actual DRO Hearing, N & M Evidence is mandatory, without it, an Administrative Denial is guaranteed.

There's mention of  Recreational Carpentry "unprotected."  As I recall, Circular and table saws are high on the noise exposure list, could be a problem with late developing Tinnitus. 10-15 yrs of weekly of Recreation Noise Exposure, could be a real problem.

I think the Crotch started using Hearing protection for Boots on the Range, sometime after 1975. Were you ever exposed to unprotected Range Fire? Verifiable?

Semper Fi

[waccamawwild]

Please don't give up on Tinnitus service connection. It took me two times to get it. I had to prove that my mos of Boatswains Mate was hazardous noise environment. You can get it if you keep working at it. I would definitely appeal if I had a strong IMO for service connection. I have had to appeal to DRO once and BVA once and won both appeals. A good IMO will make the difference even though they may ignore at regional office level. Don't forget that most of us here have had to fight hard to get our service connection and percentages. It took me almost twenty five years to get to 100% P&T and that is with consistent and constant claims for 25 years! Don't ever give up. The squeaky wheel gets the grease!

[SgtE5]

Went to see the vso. She typed up a NOD and sent it off. Will see what happens next.

[MarkInTexas]

It would help if you could get it in there that you began to develop symptoms while in service.  That and a good IMO usually will knock the wall over for Tinnitus.  MOS/AFSC associated with noise exposure also will help greatly.  Good luck!

 

Mark