Hearing Tests Expert and possible cue

[GeekySquid]

Okay, so I got the CDROM with my C-file this week, and I already knew that there were problems with my C&P for bilateral hearing loss conducted in 2013 but needed the C-file to do anything. I found out about the error in 2017 when a paper copy of my c-file showed up out of nowhere after more than a dozen statements from the VA, St.Louis Rec Mgmt, and the Navy saying no one could find my records.

When the C&P happened I was never mailed a letter with the results and that justifications. I did receive my rating later for 70% PTSD 10 % Tinnitus as being SC. My American Legion rep said the bilateral hearing loss claim was denied. I took his word for it and went on about my business.

The paper copy of the c-file arrived and besides a cursory look I did not dig much into it. One day I did some more looking and found the C&P  and it clearly stated that the examining Doctor only looked at the hearing tests for my induction and end of my FIRST enlistment. She completely ignored my second enlistment and even called the second enlistment a separation instead of a reenlistment.

I did not deal with it at that time because I was doing a hundred things and then I moved up to Seattle and put that box in storage back in New Orleans while I decide if I can last the winters here.

I have found several distinct problems w/ my c-file and her determination reasoning and what I want to find out is if these readings mean anything but more importantly if this is properly submitted as a CUE? The lack of service connection for the left ear will make getting hearing aids a problem later in life and frankly I say 'huh' a lot as it is.

1) she only looked at one enlistment

2) she stated that "...an OSHA-defined STS during military service CANNOT be established from this audiometric data." Yet in the file is that very document but from my second enlistment period.

3) Including the C&P there are 6 hearing tests in the file. There should be at least 4 more, as my job required an OSHA hearing test every two years, these are mandated tests and do not substitute for reenlistment and discharge hearing tests.

4) The one OSHA test in my c-file is marked in writing as "an OSHA-defined STS during military service CANNOT be established from this audiometric data." This file says it occurred 3 days after another OSHA test which shows a 20 DB loss in my left ear at reenlistment but none of the intervening tests are in the file. This one "reset the baseline" to 0 for the 4000Hz frequency. I Don't understand this and do not remember ever taking back to back hearing tests or being told to sit in a quiet place for 3 days before being retested.

5) The final in-service test is off the charts compared to my other tests. I have 70's and 75's in my right ear and 30's in my left. My AVG for the right ear is a 37.5HL.

6) the C&P says there is loss but not enough to be rateable. which is fine but it also says the loss is not service connected. which is flat out wrong.

7) For the right ear she lists an IDC 9 code of 389.11 which is for BILATERAL Hearing Loss, but says there is no loss in the Left ear.

sorry about the huge table, but it shows the readings for every test in my c-file. The one in blue is the OSHA baseline reset test and the numbers in red are the noted 20 db difference the triggered the supposed reset of the baseline.

any CUE help would be appreciated. I think it is one but I am not sure.

 

Induction	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
right	na	10	5	20	0	0	5	na	(30/5) = 6
left	na	15	10	0	0	5	15	na	(30/5) = 6
Re-up	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
right	na	30	10	5	5	5	10	na	(35/6) = 5.8
left	na	15	10	5	0	20	5	na	(40/6) = 6.66
osha 87	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
Right	na	10	5	0	0	10	-5	na	(15/6) = 2.5
Left	na	5	5	5	5	0	5	na	(20/6) = 3.33
osha 87 3 days later	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
right	na	10	5	10	-5	0	5	na	(15/6) = 2.5
left	na	15	5	5	5	0	10	na	(25/6) = 4.16
Discharge	250	500	1000	2000	3000	4000	6000	8000	Avg not including 500
Right	na	5	70	30	25	20	75	na	(225/6) = 37.5
left	na	10	5	10	5	0	30	na	(57/6) = 9.5
C&P	250	500	1000	2000	3000	4000	6000	8000	Avg listed in C&P
right	na	30	20	15	15	40	25	20	22
left	na	20	10	15	15	15	20	10	14

 

 

[Buck52]

They are not required to send us the C&P REPORTS

Unfortunately the Veteran has to request it ,if it was a contractor that did the C&P this goes for any condition we file o,n check with the VBA (veterans benefit Administration) for the report .

if the C&P Exam was conducted by the VA  then you should be able to wait 3days and either check with the release of information desk release of medical records to request a copy or check the VBMS off your MyhealthyVet account  under the blue button feature the progress notes.

or find it in his/her C-File///also Updated C-FILE are a Must when filing for a claim.

As for as applying for hearing loss and when a Veteran gets a bad report or unfavorable report from the VA Dr's. or a denial..I always tell Veteran to go get a Private IMO  ( Independent Medical Opinion) Audiology hearing test making sure the Audiologist uses the VA guide lines set forth by the VA Using the Maryland CNC word discrimination CD Test.

Dr needs to Read pertaint medical records

you will likely need to use the Noise induced Hearing loss caused by loud sudden noise caused by your military service unless you were sick that caused your hearing loss while in the military or other reason why you have a hearing loss problem.

The best Audiology Dr to use in my opinion is a ENT specialist with his own state license Audiologist, just ask the Dr to give his opinion after he reads some of your medical records from the VA from other testing you have had done by the VA

for service connection the Dr needs to give his opinion that since you were around loud noise in the service it its likely as not your noise induced hearing loss was likely caused your MOS or the loud noise or loud sudden sounds you incurred or was around while in the military.

Just because a Veteran had 100% hearing at the time of induction DOES NOT MEAN HE WILL HAVE 100% hearing when he gets discharged.

so its up to the Veteran to prove he/she has a hearing loss and it has to have happen while in the military although the Veteran himself don't recognize this for years after the military...its obvious that when we lose our hearing we notice that and others around us notice that

 Note:

LAY STATEMENTS FROM FAMILY MEMBERS AND FRIENDS THAT HAVE KNOWN YOU PRIOR YOUR MILITARY THAT ARE NOTARIZED TO GIVE THEIR OPINION ABOUT YOUR BAD HEARING PROBLEM .....> WILL HELP IN A DECISION WITH THE  VA RATER

Please remember to get any percent of hearing loss with the VA you need to be damn near deaf to get anything above the 10%  its called profound hearing loss caused from noise induced exposure while in the military.

but the hardest part is establishing Service connection for hearing loss  since hearing loss occurs  over time/years   Then if and when the Veteran does have a % of hearing loss makes it much easier to file and be approved when he does start to lose his/her hearing.

Also remember too that if your rated 70% for a service condition and any other conditions  in your case you have a 10% tinnitus condition rated at 10% this is a combined rating of 80%

if any of those S.C. Conditions keeps you from finding marginal employment  and Qualified Dr states these conditions keep you from doing any type of employment  you can request IU be given...

Veterans have to request the IU they will not infer it.

   when a veteran has a combination of service connected conditions that amount up to 60%or above and in some circumstances 40%   they can apply for the IU if this conditions keeps them from working? 

 key is to have a Dr to state you can't work because of your S.C. Condition./Conditions's

Edited October 7, 2018 by Buck52

[broncovet]

A Veterans dispute of what the C and P examiner stated isnt CUE, even if its inaccurate.  You see, the C and P examiner is presumed to be an expert in their field, and their exam is correct, absent your rebuttal.  

You have a right to rebut the competence of the examiner, or of the contents of the exam, but neither are Cue.   If the VARO decision maker bases his decision on the contents of the exam, then this is not CUE error.  

To correct errors in your medical report, there are 2 ways:

1.  Hire another C and P examiner to "refute" examiner 1's report, that is, get an IMO/IME.  

2.  You can challenge any error in your file with the following regulation:

Quote

38 CFR 1.579 - Amendment of records.

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§ 1.579 Amendment of records.

(a) Any individual may request amendment of any Department of Veterans Affairs record pertaining to him or her. Not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date or receipt of such request, the Department of Veterans Affairs will acknowledge in writing such receipt. The Department of Veterans Affairs will complete the review to amend or correct a record as soon as reasonably possible, normally within 30 days from the receipt of the request (excluding Saturdays, Sundays, and legal public holidays) unless unusual circumstances preclude completing action within that time. The Department of Veterans Affairs will promptly either:

(1) Correct any part thereof which the individual believes is not accurate, relevant, timely or complete; or

(2) Inform the individual of the Department of Veterans Affairs refusal to amend the record in accordance with his or her request, the reason for the refusal, the procedures by which theindividual may request a review of that refusal by the Secretary or designee, and the name and address of such official.

(Authority: 5 U.S.C. 552a(d)(2))

(b) The administration or staff office having jurisdiction over the records involved will establish procedures for reviewing a request from an individual concerning the amendment of anyrecord or information pertaining to the individual, for making a determination on the request, for an appeal within the Department of Veterans Affairs of an initial adverse Department of Veterans Affairs determination, and for whatever additional means may be necessary for each individual to be able to exercise fully, his or her right under 5 U.S.C. 552a.

(1) Headquarters officials designated as responsible for the amendment of records or information located in Central Office and under their jurisdiction include, but are not limited to:Secretary; Deputy Secretary, as well as other appropriate individuals responsible for the conduct of business within the various Department of Veterans Affairs administrations and staff offices. These officials will determine and advise the requester of the identifying information required to relate the request to the appropriate record, evaluate and grant or deny requeststo amend, review initial adverse determinations upon request, and assist requesters desiring to amend or appeal initial adverse determinations or learn further of the provisions for judicial review.

(2) The following field officials are designated as responsible for the amendment of records or information located in facilities under their jurisdiction, as appropriate: The Director of each Center, Domiciliary, Medical Center, Outpatient Clinic, Regional Office, Supply Depot, and Regional Counsels. These officials will function in the same manner at field facilities as that specified in the preceding subparagraph for headquarters officials in Central Office.

(Authority: 5 U.S.C. 552a(f)(4))

(c) Any individual who disagrees with the Department of Veterans Affairs refusal to amend his or her record may request a review of such refusal. The Department of Veterans Affairs will complete such review not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual request such review and make a final determination unless, for good cause shown, the Secretary extends such 30-day period. If, after review, the Secretary or designee also refuses to amend the record in accordance with therequest the individual will be advised of the right to file with the Department of Veterans Affairs a concise statement setting forth the reasons for his or her disagreement with the Department of Veterans Affairs refusal and also advise of the provisions for judicial review of the reviewing official's determination. ( 5 U.S.C. 552a(g)(1)(A))

(d) In any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (c) of this section, the Department of Veterans Affairs will clearly note any part of the record which is disputed and provide copies of the statement (and, if the Department of Veterans Affairs deems it appropriate, copies of a concise statement of the Department of Veterans Affairs reasons for not making the amendments requested) to persons or other agencies to whom the disputedrecord has been disclosed. ( 5 U.S.C. 552a(d)(4)) ( 38 U.S.C. 501)

3.1579 is the way to correct errors in your medical file, filing Cue is not.  Once the errors are corrected, you can resubmit the correct version under 38 cfr 3.156, new and material evidence.  

[broncovet]

Im not sure why, but your hearing tests are inconsistent.   You pretty much have normal hearing in your left ear, almost certainly not enough hearing loss in your left ear for service connection.  

In your right ear, you had a loss at discharge, but that right ear loss at discharge seemed to actaully improve at your c and p exam.  

TWO issues:

1.  Hearing tests, to be valid for VA, have to use the Maryland CNC and I have no idea if the OSHA tests qualify for this.  

2.  What is your speech discrimination?  If you dont have speech discrimination, or if its greater than 90 percent, your rating even if service connected is almost certainly zero percent.  

[broncovet]

All of what I posted above, however, is "jumping the gun", because you first have to have hearing loss service connected with all 3 Caluza elements.  Do you have a current diagnosis, in service event and nexus?  

[broncovet]

To find out if you have a nexus, read your audiology reports and see if the audiologist opined, "The Veteran has ______ (fill in your type of hearing loss, often noise induced for SC.  Other things can cause hearing loss, such as an ear infection.)  hearing loss which is "at least as likely as not" due to noise exposure during service".

Now the audiologist often defines here what noise exposure you had, such as exposure to  jet engine noise (what caused my hearing loss), exposure to loud guns, etc.  You can get hearing loss from a single event, for example if something blows up close to you, or you can get hearing loss from being repeatedly exposed to very loud noises, such as shooting guns, or very loud equipent, also. 

You can also get hearing loss from trauma...if a grenade goes off near you, for example.  My father in law got hearing loss from this.  

In my humble opinion, your max rating from hearing loss, given the numbers you posted, is probably 0 percent UNLESS you have some severe speech discrimination issues (below 80 percent speech discrimination).  However, hearing loss is progressive and you may get a higher rating if your hearing loss has worsened, if you win service connection.  

What is the reason you state caused your hearing loss?  Were you exposed to noise?  Trauma?  They may ask your MOS...if your MOS is you worked on jet engines, they often grant it, as they would if you frequently fired a gun in your work.  A single event such as training and qualifying with a gun over a day or two, probably would not suggest the military caused hearing loss, unless something went wrong.  However, if you carried and fired a gun for years, that is different.  

As I explained, you will need to define an "in service event" to establish service connection, and I wwas unable to tell what that was from your posts.   

[GeekySquid]

3 hours ago, Buck52 said:

They are not required to send us the C&P REPORTS

@buck52

I knew we didn't get mailed out copies of the C&P but until this year I also did not know they would mail us them if we requested them. Silly me.

My job environment, and the C&P , says it, is considered one that causes hearing loss. My big issue right now is that the DOC only evaluated 2 hearing tests out of the ones I show in the chart. To me this is a CUE-seeming issue.

She rated me as SC for tinnitus.

She also gave me an IDC code for "bilateral hearing loss" but only in the right ear. In my records it only says my claim for bilateral hearing loss is NOT SC.

She says in her reasoning that no OSHA STS was documented but my military med records show at least one OSHA STS and missing from the files are the other mandated OSAH hearing exams I took every two years.

every service person should have an entrance and exit hearing test in their records. If you re-upped the separation exam is also your re-enlistment exam, and there should be one for each contract (re-up) for as long as you served. If you did 4 contracts there would be at least 5 hearing exams.

If you were in combat, worked in aviation, were in a plane crash, were in artillery, etc you may have more than the minimum number of tests. as an example certain Airdale jobs had them every year because they dealt with acoustical tracking of sonobouys for sub hunting.

thanks for your input It helps.