Filing for Hearing Loss & Tinnitus

[Ed Ball]

Noise and Military Service; Implications for Hearing Loss and Tinnitus (2006) is the Institute of Medicines findings and presentation to the VA Secretary which deals with a lot of history throughout the DOD, addressing such things as "whisper exams" that fail to register the upper frequency ranges or loss thereof which is what Bilateral SNHL is all about. Lack of documentation, and a wealth of other information. Did you know that prior to 1978 a bonafide DOD Hearing Conservation Program to safeguard hearing loss did not exist. One exception the USAF did in fact conduct audiograms on select personnel from the late 50s forward. 

Do not be surprised in your VA Denial letters to find those serving prior to 1978 to have had an audiogram during their induction physical, but a whisper exam upon separation. The VA C&P examiners frequently refer to your hearing being normal upon separation, therefore the military did not cause your hearing loss. The VARO will concede your traumatic acoustic events and further noise environments, but will side with the medical evidence (by law) each and every time. Solution? Private Audiology Medical Opinions, the doctor will review all information in your VA Claims folder, and list the items they reviewed on their office letterhead, with the statement they have reviewed, then have the doctor remark as to "as least as likely as not" (equal to or greater than 50%) or "more likely than not" (greater than 50%) due to traumatic acoustic events endured during his/her military service, followed by medical reasoning as to why. The doctor will date and sign their letter and insert their credentials behind their name. (You may want to request copies of your military treatment records if you don't already have copies in order to challenge the VARO decision)  

Today I get the private medical opinions before submitting the claims. That way if the VA C&P Examiner determines the military didn't cause your hearing loss (negative opinion), I have the Private Medical Opinion (positive) and they cancel each other out. Then the RVSR within VARO is left with reviewing the remaining positive evidence in your claims folder, if available, and provide the veteran the benefit of doubt. 38 U.S. Code § 5107 - Claimant responsibility; benefit of the doubt

Hearing protection devices; there are various designs, based on noise levels in your work environment; that have what are referred to as Noise Reduction Ratings to preclude hearing loss. These did not exist, in my case prior to 1979. Years ago, while in the Navy, I noticed engineers would wear what we called Mickey Mouse ears, to help attenuate the noise in their work space. These items were shared, gaskets wore out after extensive use and personnel continued wearing them without a proper seal. Their workspace would require at least a double flange and ideally a triple flange hearing protection device along with the ear muffs to preclude hearing loss. Problem being, they had to be removed in order to communicate, receive orders in conventional engineering spaces due to noise levels.

News flash! There is no test for Tinnitus. VA will attempt to state otherwise, but the American Tinnitus Association and their very own DOVA JRRD Vol 46, number 5, 2009 pages 619-632 states "Special audiological tests are effective in detecting deliberate exaggeration of hearing loss, but no documented test exists that is capable of detecting the presence or absence of tinnitus." Furthermore, you are authorized to diagnose Tinnitus; for this very reason. Define the traumatic acoustic event you were exposed to that caused your Tinnitus since military service. 105mm Howitzers 185dB, M-16 156dB, flight deck on aircraft carriers 136dB are but just a few areas of impulse noise levels that exceed OSHA 90dB exposure in an eight hour period. 

Here is a further recommendation by Veterans Law Blog:

Draft a Sworn Declaration – do not use VA Form 21-4138 – with the following information: (I've used the 21-4138 with success)

1. List each and every incident of significant noise exposure you can remember – and give enough detail to show that the exposure was significant and credible Grenade blasts, artillery rounds, simulators, constant machine-gun fire, years around loud jet or tank engines, you get the idea.  Don’t OVERDO it…1-3 sentences should suffice, but identify if you can the approximate month and year of the noise exposure.
2. State approximately when you remember the tinnitus starting.
3. If it started in service, explain why you didn’t seek medical treatment in service (for most Veterans, explaining the reality of military service to bureaucrats will suffice: no soldier, sailor, or airmen is going to stop a mission or training to seek treatment for a condition that everybody has and that there is no cure for. True Story).
4. Identify the chronicity of your tinnitus – has it been continuous since exposure to the noise?  If yes, explain that you have had this ringing since the exposure to noise.
5. Identify the frequency of your tinnitus – how often do you have ringing in the ears?  Every day? Twice a week? 4 times a month?
6. Identify the severity of your tinnitus. I think you need only do this if your tinnitus is so severe that it is debilitating, prevents you from working, or in very rare cases, is “objective tinnitus”, meaning it can be heard by other people standing next to you.  In these cases, you might be able to seek an extra-schedular rating for the tinnitus in excess of the 10% limit in the Schedule of Impairment Ratings.