VA Hearing Loss Evaluation – Self-Created DBQ (Disability Benefits Questionnaire)

On numerous occasions, veterans have expressed frustration to me concerning discrepancies between their VA-conducted Compensation and Pension Examination (C&P) and private audiologist-conducted hearing evaluation.

Normally, disputes between level of disabilities can be resolved with the private physician completing a VA-published Disability Benefits Questionnaire (DBQ) for the condition in dispute.  A link to the various DBQs can be found at  VA Disability Benefits Questionnaire.  For hearing loss, however, the VA has not published a DBQ.  I suspect this is due to Title 38’s requirement  that “examinations for hearing impairment be conducted by a state-licensed audiologist using a ‘controlled speech discrimination test (specifically, the Maryland CNC recording) and a pure tone audiometry test in a sound isolated booth that meets American National Standards Institute standards … for ambient noise.’” See 38 C.F.R. § 4.85(a).   Accordingly, I have drafted my own “DBQ” that is in compliance with Section 4.85(a).  A copy can be downloaded at the following link at DBQ Hearing Loss.

The entirety of Section 4.85 (Evaluation of Hearing Impairment) can be found below.

38 C.F.R. § 4.85 Evaluation of hearing impairment.

(a) An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Examinations will be conducted without the use of hearing aids.

(b) Table VI, “Numeric Designation of Hearing Impairment Based on Puretone Threshold Average and Speech Discrimination,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based on a combination of the percent of speech discrimination (horizontal rows) and the puretone threshold average (vertical columns). The Roman numeral designation is located at the point where the percentage of speech discrimination and puretone threshold average intersect.
(c) Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.
(d) “Puretone threshold average,” as used in Tables VI and VIa, is the sum of the puretone thresholds at 1000, 2000, 3000 and 4000 Hertz, divided by four. This average is used in all cases (including those in § 4.86) to determine the Roman numeral designation for hearing impairment from Table VI or VIa.
(e) Table VII, “Percentage Evaluations for Hearing Impairment,” is used to determine the percentage evaluation by combining the Roman numeral designations for hearing impairment of each ear. The horizontal rows represent the ear having the better hearing and the vertical columns the ear having the poorer hearing. The percentage evaluation is located at the point where the row and column intersect.
(f) If impaired hearing is service-connected in only one ear, in order to determine the percentage evaluation from Table VII, the non-service-connected ear will be assigned a Roman Numeral designation for hearing impairment of I, subject to the provisions of § 3.383 of this chapter.
(g) When evaluating any claim for impaired hearing, refer to § 3.350 of this chapter to determine whether the veteran may be entitled to special monthly compensation due either to deafness, or to deafness in combination with other specified disabilities.

 

M21-1 Updated (and Uploaded Below) for Camp Lejeune, December 30, 2015

On December 17, 2015, I blogged about the VA’s intent to propose regulations regarding presumptive conditions for veterans exposed to VOCs at Camp Lejeune.  I noted in a follow-up blog that “news sources quoted VA officials as stating that it may take up to one year for any future proposed regulation to become final.”

On December 30, 2015, the Department of Veterans Affairs amended the provision of the VA Adjudication Procedures Manual M21–1 [hereinafter “M21-1”] regarding Camp Lejeune Claims.  The M21-1 is the VA’s internal procedural manual for the use of field personnel.  As the Court of Appeals for the Federal Circuit noted, “the VA Adjudication Procedure Manual, M21–1, is dynamic rather than static. Manual provisions are amended, added and deleted on a continual basis for any number of policy, legal or administrative reasons.”  Fugere v. Derwinski, 1 Vet. App. 103, 109 (1990) aff’d, 972 F.2d 331 (Fed. Cir. 1992).  As the Court of Appeals for Veterans Claims has frequently commented “VA handbooks, circulars, and manuals may have the force and effect of law if they prescribe substantive rules.”  Buzinski v. Brown, 6 Vet. App. 360, 369 (1994) (internal quotations omitted).  In simplified terms, the M21-1 is the controlling  guidebook that VA rating personnel use to determine how a claim should be adjudicated.

The updated guidance on processing Camp Lejeune claims can be found at the following link, M21-1 (Camp Lejeune December 30, 2015).  In essence, the VA will continue to process claims and appeals for the eight conditions noted in the December 17, 2015 Press Release (kidney cancer, non-Hodgkin’s lymphoma, multiple myeloma, leukemias, liver cancer, Parkinson’s disease, scleroderma, and aplastic anemia/myelodysplastic syndromes) on a direct-service connection basis if there is competent medical evidence in the record to suggest a correlation between the claimed condition and exposure in service.  In the absence of competent medical evidence for one of the eight conditions listed above, the VA will stay (i.e. defer a decision) until the final regulation creating a presumption of service connection is published in the Federal Register.  For all conditions not otherwise noted in the December 17, 2015 Press Release, the VA will continue to process those claims in accordance with the regular regulations governing direct service connection . . . (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; (3) and a causal relationship between the present disability and the disease or injury incurred or aggravated during service.

If you have questions concerning possible entitlements under Title 38 for Camp Lejeune veterans, please don’t hesitate to contact us at (732) 382-6070 or via email at sdirector@finkrosner.com.

 

 

 

Newark Regional Office (VBA) To Hold VA Claim Clinic on October 14th

On the Department of Veterans Affairs (VA) Twitter feed, they announced that the Newark VBA Regional Office will hold a clinic on Wednesday, October 14, 2015 from 10AM to 2PM at the Newark City Hall.  Link to the twitter feed at

For those interested, the POC contact information is Jennifer Myers at (973) 297-3384.

Study Released on Camp Lejeune Water Contamination and Male Breast Cancer

As documented in our August 4, 2015 post, the Department of Veterans Affairs (VA) is continuing research and consideration of issues related to volatile organic compound (VOC) exposure  at Camp Lejeune, North Carolina.  The August 4, 2015 VA Press Release is again contained at http://www.va.gov/opa/pressrel/pressrelease.cfm?id=2720.

Within the last week, the Agency for Toxic Substance and Disease Registry (ATSDR) released a study evidencing possible association between male breast cancer and service at Camp Lejeune, North Carolina.  The study can be access at Evaluation of Contaminated Drinking Water and Male Breast Cancer at Marine Corps Base Camp Lejeune, North Carolina: A Case Control Study.

If you have any questions concerning exposure to VOCs at Camp Lejeune and possible entitlements before the Department of Veterans Affairs, please don’t hesitate to contact us at (732) 382-6070 or via email at sdirector@finkrosner.com.

Access Point for Proposed Regulatory Changes to VA Title 38. . . and Miniature Horses

A question was posed a last week regarding how the Department of Veterans Affairs (VA) would rate Female Sexual Arousal Disorder (FSAD).  While the condition is usually rated by analogy, I was able to recall that the VA had proposed a new diagnostic code for FSAD to Title 38’s Schedule for Rating Disabilities early this year.  While I don’t believe this particular proposed change will effect the veterans’ rating, the veteran was now aware how the VA is likely to consider certain gynecologic conditions in the future.  This information was publically available in the Federal Register . . . and this is how I know that VHA will not consider a miniature horse as a service animal in the future. 

Whenever the Department of Veterans Affairs is seeking to change a particular regulatory provision within Title 38, the Administrative Procedure Act (APA), requires that the proposed change be published in the Federal Register.  In most cases, the APA requires that a federal agency (to include the VA) publish notice and provide a sixty-day window for public comment before adopting the rule.  Proposed changes to Title 38 can be located online at the following link: https://www.federalregister.gov/agencies/veterans-affairs-department