VA wants another new C&P audio exam

[pointer123]

I am a retired Marine infantry Officer and have been rated for tinnitus at 10% and hearing loss at 0% since 1997 when I retired. My hearing got consistently worse over the years .  In June 2017, I decided to claim additional disabilities related to arthritis, my eyes (diplopia), vertigo, an increase in my hearing loss, and TDIU.  I was a Marine parachutist and scuba diver and was diagnosed with left ankle arthritis via x-ray in 1981. Because I was diagnosed with this chronic disease while  in service, I think this should be supportive of my existing arthritis claims.  I currently  have x-ray documentation of arthritis in virtually every joint. 

However, I want to focus on the increase in hearing loss aspect of my claim.  They rated my June 1997 claim in March 2018 and gave me a combined 80%. Relative to hearing loss and tinnitus, I got a VA half-baked hearing exam at a VA C&P exam  which continued my hearing loss at 0%. All the audiologist performed was, in my opinion, a biased air conduction test and speech discrimination test.

I was previously rated at 50% combined in 1997.  The new award from the June 2017 claim gave me 10% arthritis in my left knee and 10% arthritis left ankle and 10% arthritis right knee.  They service-connected left and right calf soleus muscle tendonitus as part of each of the knee 10% arthritis ratings (I contend that the muscle tendonitis should have been rated separately). They also gave me 30% for aphakia of left eye (instead of uncorrectable bilateral diplopia as it should have been).  This left me with 80% combined. Within this rating they failed to rate (omitted) - my vertigo disability claim and and review my private endocrinologist nexus letter evidence for my diabetes type II claim - which they denied.

It appears, after my claim was decided, the VA conducted a review that determined they did not get all treatment records from the VA and did not consider my private medical records. They called it late flowing evidence (even though they had my private treatment records since the day I filed my claim) and tried to just address the DM II aspect of the claim as a reconsideration EP 20. When they they submitted that to the rating board, the Memphis RO told them that the EP 020 was incorrect and they had to re-rate ALL the contentions as an EP 930 because the evidence was received before the previous rating was completed. 

Based on the Memphis RO directive,  the way the RO decided to handle this EP 930 was to send me out for 3 new C&P exams to redo all the C&P exams that were performed on the original claim (eyes, ears, and arthritis and tendonitis) as requests for increase.  I presume this was a "failure to assist " deficiency they had to correct with new exams  because the previous C&P examiners did not have access to ALL my medical records. All other items that were previously denied in the claim as not service connected without C&P exams (arthritis) would be reevaluated as new claims in the EP 930.

As part of the EP 930, the new C&P hearing exam by the VES contractor was far more detailed than the first VA hospital C&P hearing exam and came back with results which should place my hearing loss at 50%. Speech discrimination of 24% on left ear and 60% on right ear. The audiologist performed, in addition to air conduction, additional conductive tests(bone) and immittance tests. All immittance tests were abnormal except one. The audiologist cited that my right ear hearing loss was more likely than not related to service.  This would make the hearing loss bilateral instead of just left ear.  Also, favorable functional impacts of hearing loss and tinnitus were provided.  

Now the VA has finally started the re-rating portion of the EP 930 claim and want to schedule me for another NEW audio exam.  I do not understand this.  It appears that the last C&P hearing exam for this very EP 930 claim was too favorable to my claim.  It appears they are diagnosing to deny. 

The 50% hearing loss would place my combined rating over 90% and should be supportive of the TDIU I filed which is in the current EP 930 claim.

What should I do?

Sidenote:  While I have been waiting for this EP 930 to be completed, the original 80% combined claim that started this fiasco is now final (over a year old).

[Buck52]

It is within your best Interest to go get a second opinion professionally 

but also do not miss the C&P Exam   this can be refuted with another qualified Dr such as a private ENT Doc

In my opinion it is well worth the $$ to get a second opinion from a private state license qualified hearing Doc(Audiologist)

simply because the VA Audiologist Clinics equipment is not that accreate to rate hearing loss in veterans,  they are 100's of vets getting hearing test everyday  and the equipment they use is certainly out dated or needs adjustments   therefor giving the veteran a false report on his/her hearing.

Seek a private ENT Doc that uses his own Audiologist. and they go by the VA hearing test guidelines and use the Maryland CNC Word test

to test your hearing and compare that test to your last VA hearing test ask this Dr if you show a degree in loss of hearing and how bad is your hearing now Since your last test..ask the Dr if your hearing loss is mild or severe or profound hearing loss....depending on this outcome of the test  is what will determine you get a rating..if your already  s.c. at 0% Thats a good start.

Being infantry Its obvious you have Noise Induced Hearing loss so ask the Dr to touch up on that  as you may get a rater that is inadequate to understand just how they are suppose to rate veterans with Noise Induced Hearing loss.

Remember Noise induced hearing loss gets worse over the years because your ear drums have been damage with the loud  sudden noise you encountered during your military service.

submit all this as your new evidence.

if you show a profound hearing loss  that should give you at least a 50% rating so with that and your other combined S.C. ratings put you up to the scheduler 100% and you won't need the IU. (JMO)

if possible  you have combined ratings  you get 100% and another separate S.C. Rating of 60% or higher  its possible you will meet the SMC (SPECIAL MONTHLY COMPENSATION) Criteria

Good Luck to you Sir

Edited April 16, 2019 by Buck52

[GeekySquid]

On 4/16/2019 at 3:38 AM, pointer123 said:

What should I do?

plan your appeal...

Buck52 is correct and his suggestion is worth taking.

On a side note, review the MR21.. Having a rated hearing loss, rated tinnitus and vertigo should/can be rated as Meneires disease. I am dealing with that particular threesome myself and planning a sequence of NOD's and CUE's to not only get Meneires rated but back paid to when the VA failed to assist me in getting C&P's for them.