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pointer123

develop to deny

Question

I dropped off the following is the letter at the Regional Director's Office regarding "develop to deny" in my claim that has been pending over a year and a half.  Think it will have any effect?

---------------------------------------------------------Letter text follows......

Formal objection for "development to deny" by the VA regarding a current pending claim dated 1 January, 2019 under EP 930 for an increase in disability for audio hearing loss due to the VA scheduling a new duplicate audio exam for the same pending claim as of 11 July, 2019.  I have included the existing VA audio exam for this claim as attachment 1 below.


Background:
The facts of this objection are simple.  As part of the VA claim development process for my pending increase in hearing disability, I was scheduled for, and attended, a VA audio Compensation and Pension(C&P) exam on 13 August, 2018.  This examination was highly probative and conducted by an audiologist contracted by Veteran Evaluation Services(VES) for the VA.  On 10 July, 2019, I received a telephone call from VES stating the the VA wanted them to schedule a new audio exam for the same claim.
VES submitted the  C&P exam report to the VA on 14 August, 2018.  Conversation with VES and a review of my C-File indicates there were no sufficiency problems with the VES exam. All tests performed by the VES audiologist met and/or exceeded VA requirements.  Based on the foregoing, there was no legitimate reason for another medical examination or opinion.  Clearly, there must be compelling reasons for the VA to reschedule a previous VA exam and it must be related to the sufficiency of the previous exam.  As stated above, there were no sufficiency concerns with the 13 August, 2018 audio exam.  I met my responsibilities in reporting to the VA Audio Exam conducted by VES on 13 August, 2018 and the exam meets the requirements for an increase in my hearing disability rating. 


It should be noted that the compelling reasons regarding sufficiency apply to previous VA examinations and not private medical examinations.  My previous audio exam was a VA exam, and, as such, compelling reasons with regards to sufficiency must be identified and presented prior to scheduling.  The previous VA audio exam is adequate for rating and current regulations admonish regional offices not to request an examination solely to confirm evidence.
The VES exam was clearly in favor of an increase to my audio disability rating.  Additionally, the VES exam was far more probative than a VA audio exam that was  conducted by the VA Hospital Boston in the previous claim that generated the current EP 930 claim.  The VA Boston audio exam only measured puretone threshold and the Maryland CNC test. 


The VES exam was far more detailed and, in addition to the puretone threshold and the Maryland CNC test, VES conducted additional tests that Boston did not conduct.  These tests included air conduction, bone conduction, and acoustic immittance tests.
Based on the foregoing, ample VA evidence exists to determine my hearing increase disability claim and an award should be made without a subsequent and redundant VA audio exam which constitutes development to deny and is arbitrary and capricious.
Based on the foregoing, the VA should cancel any new VA audio exam for this claim and rate the claim using the existing and sufficient VA audio exam performed by VES on 13 August, 2018.

 

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That is a well thought-out letter and it states your position clearly. I see no reason that it should be not be seriously considered by the RO. The only thing I could recommend for now would be to request a follow-up meeting with the RO to discuss. If they say no, so be it. You are on record. If you have to take an additional exam and if the results are negative, you certainly have a reasonable basis for appeal. JMO.

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The VA cannot send you to a C&P to contradict another C&P.  That being said they have done this to me before.  Hopefully your letter will prevent you from having to go to the BVA.  I agree with GBArmy about this but I would also submit your letter through ebenefits.  

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Posted (edited)

I hate to say this .. but I have experienced the same thing,  one exam at the VA and another exam by a contractor.... My claim and my DeNovo review  where both denied. First I learned by the VA examiner that  the standards for a C/P hearing  test are different from a hearing test that you would request to determine the level of hearing loss and get hearing aids. The examiner explained to me that they are required to raise the level of DB's when doing the hearing exam for a C/P exam.., the increase in DB's results in a denial because the word comprehensive test becomes 94% at  95 DB level. Normal hearing levels are no higher than 20 DB's at any level.   The Private examiner did not even require me to sit in the 4x4 hearing booth, because I was in a wheelchair and I could not transfer to the hearing booth because there was no room or handicap bars to transfer.... I think this alone would violate the requirement of an exam,  I now have my claim at the BVA. I am service connected at 0% since 2005, and everytime I have my hearing checked it is worse than the last time, and finally when my right hear became so bad based on a normal examination I knew my hearing loss would result in a 10% rating for the right ear... the VA makes it so hard to get a compensable rating for hearing loss.  At one  point a congress critter tried to get into law that anyone who was service connected for hearing loss at 0%  should get a 10% rating. Of course the recommendation never made it into law. Factually, a hearing aid does nothing to correct the understanding of the spoken word, it just raises the volume and in some cases makes it harder to understand the words spoken.  Why not just test your hearing when wearing hearing aids it would serve the same purpose as raising the DB's when doing the test... (of course this would be  ridiculous)

Now to your specific question... I doubt what you have written really matters. I also have experienced this  issue  of having more than one c/p exam  with my eyes in fact at one point I had three exams to get an increase in my rating for my eyes... and of course I was denied.  In  case of my eyes, I told the VA that the first c/p exam which was conducted within months after a VA doctor butchered my eye, was a more favorable exam  but because the examiner stated she was not qualified to perform surgery she did not feel qualified to render an opinion, but then went on to say that the damage was caused by the surgeon. The va threw out the exam and I argued that there was no rule or law requiring a C/P examiner to be a surgeon to render an opinion on the condition of a veterans eyes... my argument when unnoticed....and my request for a higher rating was denied.  In fact it was denied at the BVA as well... and I just decided I had spent too much time on the claim ( 11 years) and that it wasn't worth any more time. Having to chose the battles we fight,  this was one battle I  did not think I was going to win regardless of the facts... That goes back to what we hear all the time,  delay, deny  and finally die..... the va does a good job in this way.

The facts are we have to play by va rules, the va can order a c/p exam anytime the rater feels it is necessary... yes I said anytime.,.... your argument is not a new argument. It is up to you to prove that an exam was inadequate for what ever reason, or show why one exam is more valid than another .  Just saying one exam was better than another will not do the job nor will your opinion that a second exam was not required, again you have to prove one exam was better and why.

Good luck 

 

 

Edited by Richard1954
Too much info deleted some

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18 hours ago, pointer123 said:

The VA Boston audio exam only measured puretone threshold and the Maryland CNC test. 



That is what they are paid to do see the attached ... from VHA Handbook 1170.02 (1)   or download the entire handbook a review the whole thing

VHA HANDBOOK 1170.02(1) APPENDIX C.pdf

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Posted (edited)

When Veterans are having a hearing test at the VA This is the most important part the veteran needs to get right on for the speech recognition test and also for the  complete hearing testing.

to make sure the audiologist is setting the volume up correct to the  veterans confrontable level before the hearing testing begins.  they mark the positions when the veteran realizes the sounds that he hears.

Speech Recognition Test Procedures (Maryland CNC) (1) The sta血g presentation level must be 40 dB re SRT. If necessary, the sta正ng level must be a句usted upward to obtain a level at least 5 dB above the threshold at 2000 Hz, ifnot above the patient’s tolerance level.

Edited by Buck52

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