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SgtE5

Tinnutis SOC Issued. Need Help For BVA I9 Form

Question

Filed in 2015

Denied April 2016

NOD DRO review

SOC issued 20 Sept. 2018

IMG_20180929.thumb.jpg.9ea32ec6300781faa0ddc68b3a045fa8.jpg

 

Need help as to how to argue this case. IMO stated issue was most likely related to service. Evidence on record VA ignored.

This is a very rough draft of my argument.

I am in receipt of a Statement Of Case concerning my claim on Tinnitus and wish to appeal to the Board Of Veterans Appeals with the following argument.

First and foremost, I state again my tinnitus as I know now what it is, was a condition I was not aware of what it was in service and that would not go away and passed it off as it’ll be fine in a week or two. I was never asked at my discharged physical. It was 11 years after I was discharged that limited tinnitus surveillance was introduced with post-deployment health assessment questionnaires. I never pursued via doctors for the ringing since having no medical insurance after service, I could not pay out of pocket.

During my first appointment as a new patient with the VA in Oct 2002 I complained of Tinnitus and received a diagnosis of Subjective Tinnitus. At that time, I wasn’t aware it was a disability for VA purposes. Why or how it dropped off my active problems list I don’t know. But my present doctor has diagnosed me again.

In my first VA hearing test, I stated that my tinnitus had an onset late 1980’s early 1990’s and in 2007, the audiologist shortened it to “Many years”

My MOS 3531 is on the list of Duty MOS Hearing Loss Probability Chart-VA Fast Letter 10-35 as having a moderate probability of being exposed to hazardous noise. Exposure to such noise has been conceded for purposes of establishing the in-service event.

The evidence on record shows neither the RO or DRO properly applied the Reasonable Doubt doctrine.

§3.102 Reasonable doubt.

                It is the defined and consistently applied policy of the Department of Veterans Affairs to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. It is not a means of reconciling actual conflict or a contradiction in the evidence. Mere suspicion or doubt as to the truth of any statements submitted, as distinguished from impeachment or contradiction by evidence or known facts, is not justifiable basis for denying the application of the reasonable doubt doctrine if the entire complete record otherwise warrants invoking this doctrine. The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident allegedly arose under combat, or similarly strenuous conditions, and is consistent with the probable results of such known hardships.  (Authority: 38 U.S.C. 501(a))

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that: The statutory “benefit of the doubt” standard of proof for cases dealing with veterans benefits is at the farthest
 end of the spectrum, beyond even the “fair preponderance” standard. 
And
Therefore, a veteran need only demon­strate that there is an “approximate bal­ance of positive and negative evidence” in order to prevail; entitlement need not be established “beyond a reasonable doubt,” 
by “clear and convincing evidence,” or by a “fair preponderance of evidence.” In other words, as counsel for the Secretary agreed at oral argument, the preponderance of the evidence must be against the
 claim for benefits to be denied. In a very real sense, the Secretary faces an easier task than other administrative or judicial factfinders who must render a decision even in the closest of cases; when a veteran
 seeks benefits and the evidence is in relative equi­poise, the law dictates that veteran pre­vails. This unique standard of proof is in keeping with the high esteem in which our nation holds those who have served
 in the Armed Services. It is in recognition of our debt to our veterans that society has through legislation taken upon itself the risk of error when, in determining whether a veteran is entitled to benefits, there
 is an “approximate balance of positive and nega­tive evidence.” By tradition and by stat­ute, the benefit of the doubt belongs to the veteran.

On 7/2/2015 Dr. Julie Lewerenz a private Board Certified Doctor of Audiology opined that my tinnitus is most likely related to my military service. She states:

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.

She goes on to say:

 

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.

While Dr. Lewerenz does not use the correct VA term “STR”, she does state “His previous hearing tests were reviewed and revealed normal hearing bilaterally with minimal decline over the years.” In other words, she was made available all my medical records for both my military service and VA.

There is an approximate balance of evidence in equipoise which brings in the Reasonable Doubt Doctrine.

Doctor Babeu in her own c&p evaluation, notes: Military Noise Exposure Hx: ship board noises, heavy trucks, explosions, and small arms fire: sometimes protected. She fails to opine that I was sometimes protected, the explosions I was exposed to being in explosive ordnance disposal and ship board noises while in Desert Shield and Desert Storm nor my deployment on a Merchant Marine Ship to Honduras and in 1989 my TAD as an instructor to Marksmanship Instructor School, Camp Lejeune. She also lists combat under history but does not address it.

Doctor Babeu failed to accept the long-term exposure to continuous noise and my lay statments in not applying the fact that I was deployed during operation Desert Shield and Desert Storm for 8 months aboard the U.S.S. Guam LPH-9. The Guam being a Landing Platform Helicopter, there were constant noise of helicopters taking off and landing and noise from engines being worked on in the hanger deck which certainly falls under noise induced tinnitus.

Doctor Babeu references the 2005 Institute of Medicine's landmark study: Noise & Military Service: Implications for Hearing loss and Tinnitus study in her opinion.

 In chapter 3

 

“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).”

In chapter 4:

 

“The possibility that the onset of noise-induced tinnitus might be delayed by months has been raised because studies in laboratory animals have shown that degenerative processes initiated by the noise exposure continue in central auditory pathways after termination of the exposure (Kim et al., 1997; Morest et al., 1998). Although degenerative changes in afferent pathways will most likely not affect auditory thresholds, it is possible that they could contribute to other central processes such as tinnitus. (emphasis added) The time required for this reorganization might vary across individuals and potentially could be a long-term process.

In VA’s own Training Letter 10-02, it is stated under the section for Tinnitus:

 

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.

The VA acknowledges that Tinnitus can be triggered months or years after an underlying cause (such as hearing loss) occurs.  Using the term “such as” in the above statement, implies that a person does not need to have hearing loss to have Tinnitus and Dr. Babeu, states in her opinion “In most cases, tinnitus is accompanied by measurable hearing loss.” This contradicts her etiology opinion as it suggests that there are some cases, albeit very limited, in which tinnitus is not accompanied by measurable hearing loss.

Turning to the statement: Your service treatment records do not contain complaints, treatment or diagnosis for this condition and to the reason stated: In the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure cannot be assumed to exist.

Dalton v. Nicholson, 21 Vet. App. 23 (2007) held that:

                Finally, to the extent the Board concluded that the third Hickson element–medical nexus–was not satisfied, the Board improperly relied on an inadequate medical examination to reach this

conclusion. The Board relied on the report of an April 2003 VA examination to conclude that "the record contains a medical conclusion by which the idea of a nexus between the veteran's current back disability and his military service is expressly rejected." R. at 15. The examination report contains the following conclusion: "After full review of [the claims] file and [SMRs], I see no evidence of any back injury while in service and it is my medical opinion that it is not likely that the veteran's present back problems are related to his military service." R. at 498 (emphasis added). A plain reading of this sentence suggests that the sole premise for the examiner's conclusion was the lack of notation or treatment of a back injury in service. Indeed, it appears that the medical examiner impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service. See R. at 496 (examiner recorded appellant's assertion that he had injured his back when an ammunition dump exploded, he was thrown by the force, and landed on his back); see also Buchanan, 451 F.3d at 1336 (noting that VA's examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran's] disability such that his claim of service connection could be proven"); Coburn v. Nicholson,

19 Vet. App. 427, 432 (2006) ("[R]eliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran."); Reonal v. Brown, 5 Vet. App. 458 , 460-61 (1993) (a medical opinion based on an inaccurate factual premise has no probative value); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (holding that VA medical examiner's conclusions were of "questionable probative value" because examiner failed to consider certain information).

       Although a medical opinion based on recitations of a claimant that have been rejected by the Board is of little probative value, see Coburn and Reonal, both supra, the Board's consideration of the third Hickson element in this case specifically assumed an in-service back injury. R. at 15 ("[E]ven if the Board were to assume, for the purpose of this discussion only, that the veteran did incur an in-service back injury, the medical evidence fails to demonstrate a nexus between such assumed injury and his current disability."). Ipso facto, the medical examiner cannot rely on the absence of medical records corroborating that injury to conclude that there is no relationship between the appellant's current disability and his military service.

And continues:

 

See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992) (noting that the purpose of section 1154(b) was "to overcome the adverse effect of a lack of official record of incurrence or aggravation of a disease or injury and treatment thereof" (citing H.R. Rep. No. 1157, 77th Cong., 1st Sess. (1941), reprinted in 1941 U.S.C.C.A.N. 1035)).

Having served in Operation Desert Shield and Desert Storm, and having received the combat action ribbon (see DD215) for the Gulf War, 38 U.S. Code § 1154(b) applies here in this case:

 

In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full.

Neither Dr. Babeu, RO nor the DRO who denied my application applied 38 U.S. Code § 1154 (a) - Consideration to be accorded time, place, and circumstances of service (a)(1) Neither opine as to my duty stations or deployments.

(a     (1) The Secretary shall include in the regulations pertaining to service-connection of disabilities (1) additional provisions in effect requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence, and (2) the provisions required by section 5 of the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act (Public Law 98–542; 98 Stat. 2727)

It should be acknowledged and accepted my lay statements of being exposed to acoustic trauma in service to be credible given my military occupational specialty and being consistence of when my tinnitus began. In giving due consideration to the places, types, and circumstances of my service, a nexus should have been conceded between my service and my claim as being continuous. Service incurrence of an acoustic trauma injury has been demonstrated.

As per both the M813 and M923 5 Ton trucks technical service manual which I drove for 8 years, it is stated:

                                                                                WARNING

HIGH INTENSITY NOISE

Hearing protection is required for the driver and co-driver.

Hearing protection is also required for all personnel working

in and around this vehicle while the engine is running

(reference AR 40-5 and TB MED 501).

We never wore hearing protection while driving in or while working near the vehicle while the engine was running.

 

VSO's are in training and can not get an appt to review my case until 2 weeks from now. Should I get a lawyer?

 

Edited by SgtE5

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It sounds like you did your homework.  READ your medical records, and make sure all Caluza elements are documented.  1.  Curent tinitus diagnois.  2 In service event or aggravation.  3.  Nexus.  It sounds like you have those. 

The VA has to rate you "on the criteria".  You need to "refute" the VA's "reasons and bases".  I think your appeal is a bit long, and would simply show how you meet the critieria, including your IMO as evidence.  Its tempting to cite precedence, but save that for your attorney if you get denied at the BVA.  Focus on how you meet the criteria, above, the decision maker should also do that.  

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Thanks broncovet for the reply. Tittinus is not in my smr's. Only in my VA records. In 2002 I was diagnosed with subjective tinnitus and unbeknowed to me, it was dropped. I found out in my original denial. My present VA doctor has diagnosed again. So current diagnose is met. To me, both VA fast letter 10-35, my lay stements and most importantly, the imo creates the second and third requirment for service connection.

I was also thinking my argument is a little long, but don't want to give them any room for denial. Your suggesting taken out all the CAV rulings?

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On 10/5/2018 at 5:23 AM, SgtE5 said:

Need help as to how to argue this case

@SgtE5

Hey SGT, I cannot help you with your case, but since I am trying to re-open my own claim for bilateral hearing loss your information is of interest.

In that vein, I have located an PDF copy of the infamous missing VA Fast Letter 10-35 which contains lists of all service job classifications (NECs, MOS, etc) with the level of hearing loss marked as high, low etc.

I cannot say if this has been superseded by a different one, but I see lots of web references and even on HADIT of it being a pain to find. I had to go through the wayback machine and pull down an archived copy of a Tenn. State website to find it. This particular one is from 2013. That is why the funny file name.

hope it helps you or others in some way

from wayback machine state of tenn website Duty MOS Hearing Loss Probibility Chart-VA Fast Letter 10-35.pdf

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Tinitus is often related to hearing loss.  Did you have an MOS, or a specific "hearing event" which led to tinnitus.  Some examples:  Exposure to any loud noises, such as gunfire, aircraft, noisey equipment, etc.  

Very often tinitus will be "noted" on your hearing exam.  

But the important issue, according to your decision, is that you dont have a nexus.  If you do have a nexus, simply cite the exam where the examiner on (date) stated that your tinnitus was at least as likely as not related to service.  

If you have documentation of a nexus, then (I suggest) you point out you drove 5 ton trucks which were very noisey.  The MOS is important, but your MOS does not limit you to doing "just" your MOS.  Point that out.  

As far as CAVC case law, yes, you should cut most of that out, and focus on how YOU meet the Caluza elements criteria.  

You may need another audio exam.   

Remember, VA likes to deny hearing loss based upon it being "too long" since military service.  However, dont let them deny you on non criteria.  "Call them out on it".  Just because your MOS is not necessarily one suggesting a high noise level, does NOT mean you can not be exposed to excessive noise in service.  

Dont forget the power of your "lay testimony".   You are competent to describe your working conditions, that is, if you worked around a lot of noise.  You dont have to have a PHd in audiology to be able to know that these machines, like 5 ton trucks, make a lot of noise.  Yes, the Board can find your testimony not credible, but they do have to give reasons why, for example, if your testimony was incosistent with medical records.  

In the absence of a VA's rebuttal of your testimony, your lay statements are credible.  If, however, the board "catches you in a lie", then they can discount all your testimony.  As an example, they may ask you when this happend.   If you state it happened in 1974, but later say it happened in 1983, your testimony is supspect.  Its always best to simply tell the truth all the time, and, if you are unsure when somthing happened dont be embarrassed and say so.  "I think it happened in the late 1970's, but that was a long time ago, so it could have been the early 1980's.   Give your self a wide range of time, dont let them nail you down to Oct. 23, 1986 at 2:05 pm if you dont have good date recollections.  If your medical exam has a date on it, cite it, not when you may remember/may have forgotten the date.  

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jmo

First thing is file your NOD  you don't need to say anything about your denial at this time  just file the NOD & If you want you can Request a DRO Hearing at your R.O. and ask for time to gather up your evidence .but most important File the NOD  Depends on how log up the RO is for the schedule of the Hearing it could be 3 months to 6 or 7 months or longer.

A good IMO from a state licenses Audiologist, Recommend a ENT Dr that uses his own Licenses Audiologist. using the VA Guidelines & Maryland  CNC  CD Word test.

About 6 Notarized Lay statements  from family and friends that have known you most of your life describing how hard is for you to communicate when they speak to you, that  you were not that way before you left to the military  ,they can give some examples  ect,,ect,,,  

You need to describe what you think is....> tinnitus to the Audiologist and ask her/him to put their opinion on record as to the relation and cause of the tinnitus, Although in the medical field of Audiology  they do not know what causes tinnitus.

  The Dr needs to report that also. The ENT needs to examine you, read your records and give his opinion.

also and You ask the Dr to opine on the bilateral noise induced hearing loss related to your MOS while in the military  you need to tell the Dr you have not been around loud noise since your military service  &  you do not hunt or fish and you never fired a Riffle  or Pistol since your military service.

As for as them stating that you didn't have any evidence of record of tinnitus or hearing loss  while in the military you can say  you never had a problem with hearing loss or what is known to you now as '' tinnitus '' while in the military,  this happen years later and it is driving you batty

Remember Noise Induced Hearing loss occurs over time  usually years after your military service  but there's really no time limit it can occur  ask the Dr to point this out as he needs to give you a good detail report.

As for as the rating for hearing loss   you need to be damn near deaf to get any type of rating  10% is the standard for hearing loss ,but it depends on the rating chart as to how much hearing loss you show?

  Mild Profound Hearing loss  is usually 50%  a severe profound hearing loss is above 50% usually 80% plus the 10% for tinnitus is 90%...if you are rated that high request IU Because this is  employment hazards.

Edited by Buck52

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