VA Claims for Hearing Loss and Tinnitus

CCK Law: Our Vital Role in Veterans Law

1. What is tinnitus and how is it diagnosed?
2. How is hearing loss diagnosed?
3. Service connection for tinnitus or hearing loss
4. C&P Exams for hearing loss and tinnitus
5. How to challenge an unfavorable VA medical opinion
6. Evidence for VA hearing loss and tinnitus claims
7. Evidence for VA hearing loss and tinnitus appeals
8. Viewer question: What if several years have passed since service?
9. Secondary service connection for hearing loss and tinnitus
10. How VA rates tinnitus
11. How VA rates hearing loss
12. Highest rating you can get for hearing loss
13. Beyond 100% for hearing loss: Special Monthly Compensation
14. VA Unemployability for hearing loss (Total Disability due to Individual Unemployability, or TDIU)
15. Evidence for a VA increased rating claim for hearing loss
16. Common VA mistakes and things to remember in your hearing loss or tinnitus claims

Video Transcription

Maura: Good afternoon everyone. Welcome to today’s Facebook Live discussion. We are here at Chisholm, Chisholm and Kilpatrick. My name is Maura Clancy and I’m an attorney here at CCK. I’m joined today by Emma Peterson, who is also an attorney here at the firm and Nick Briggs, who is accredited to represent claimants before the VA. Today we’re talking about Tinnitus and Hearing Loss. These are important conditions, because I believe as we’re going to get into their some of the most commonly claimed issues that veterans have. So, an important topic and we’re hoping that the information that we bring is helpful to you. Just a few things before we get into the subject matter. We do have the ability to see the comments that are posted next to this video.

If at any point you have any questions, please leave them in the comments feed will either try to get back to you through a comment or a message on Facebook, or we will answer the question if it’s pertinent to the discussion that we’re having. So, feel free to utilize that feature. And finally, before we get started, feel free to look up any additional information that you might need at our website, cck-law.com. I know that we’ve done blog posts and other things pertaining to hearing loss, and tinnitus, so there might be some additional information there that we did not cover today. So that’s the formalities. We’re going to get started. We’re just going to talk generally in the beginning about what tinnitus and hearing loss actually are. So, we’ll start with tinnitus. That’s the – probably the lesser known condition. So, Nick, can you tell us what tinnitus is and how it’s diagnosed?

Nick: Sure, Maura. So, tinnitus is effectively a sound that a veteran can hear that can’t be attributed to an external source. So basically, it’s something that they can hear that no one else can hear. It’s usually described as a ringing or whooshing or a buzzing sound. And the way that VA diagnosis tinnitus is it based off of the veteran subjective reports. So, if they say that they’re experiencing these sounds, they’ll– generally speaking can see that the veteran has a diagnosis of tinnitus.

Maura: So, an important thing with that, I think and correct me if I’m wrong is that you don’t actually need a medical diagnosis. It’s just something that a person is competent to report, when they find that they’re experiencing the symptoms that Nick described.

Nick: Exactly. There is one rare type of tinnitus called objective tinnitus, where due to some structural defects like high inter ear pressure, it does actually result in a sound that other people can hear. But that will usually be rated within whatever is causing the underlying condition. But tinnitus itself is again, largely based off of the veterans reports of hearing the sound.

Maura: That’s really helpful and that separates tinnitus from other disabilities that VA requires doctors and medical professionals to diagnose before they’ll recognize that you have the condition. But Tinnitus is different. And lay statements are enough to prove its existence. So that’s good to know. And Emma, can you talk to us about hearing loss and how that is diagnosed? There are some particular tests under VA.

Emma: Right. So, hearing loss in the real world is diagnosed when you have certain decibel levels lost at different frequencies of hearing. So, you know, everyone has taken as a child that test elementary school you put on the earphones, you know, you raise your hand when you hear the beep. So, something similar to that. There’s a puretone audiometry test and they tested different frequencies. In the real world, hearing loss happens at a lower number of hearing loss than for VA purposes. For VA purposes, like a number of other conditions, they require very specific things to prove hearing loss.

So, you have to have two things: You have to have a licensed audiologist perform this test – this puretone audiometric test, you have to have hearing loss at 40 decibels or higher in any number of a certain set of frequencies, or they can be at 26 or higher, three or more. I mean, there’s a couple of combinations that go back and forth. Or you can undergo this speech discrimination test, called the Maryland speech test. And that is how VA decides that you have hearing loss. So, you might have a diagnosis of hearing loss from your primary care doctor or even if you go to a private audiologist, they might diagnose you with hearing loss, but you might not have it for VA purposes. You have to do these very specific things to get a diagnosis of VA hearing loss for compensation purposes.

Maura: And I think that’s a point of confusion that does come up because a person might be suffering from hearing loss that their doctor has told them about. But VA does have these very specific requirements. It has to rise to a certain level. And they confirm that through very specific testing. So just because you have been diagnosed with hearing loss doesn’t necessarily mean that VA is going to recognize it for the purposes of whether it is a disability. So those different particulars are important to keep in mind.

Emma: Right

Maura: And so now that we have a general understanding of what hearing loss and tinnitus are, let’s talk about how to become entitled to benefits for those conditions. So, first of all, one way is to file claim for service connection. That’s pretty much where you have to start. Nick, can you tell us about what service connection is generally and then what you need to show to be successful in establishing that your hearing loss or tinnitus are related to service?

Nick: Sure. So, in basic terms, service connection is establishing that you had an in-service injury or event, that you have a current diagnosis for a condition and then a medical nexus linking those two things. So, in case of hearing loss and tinnitus, some of the more common in-service events that we see our combat surface itself, and exposure to artillery fire and small arms fire, just because many veterans who serve in a combat situation aren’t using hearing protection.

So, they’re necessarily going to be exposed to those types of noise exposure. But then there’s also just more routine forms of exposure, veterans who work as mechanics on vehicles, who serve on airplanes without necessarily using hearing protection. So that’s generally speaking of the most common way that people can establish that they have an in-service event for the purposes of getting surface connection granted.

Maura: Okay, great. So that’s really helpful in terms of what– Some common things that we see and that people have experienced, that’s going to constitute the in-service event that your current disability is related to. But just to keep in mind, you also need to show first that you have a current condition, as we just talked about, that can get a little bit tricky with the hearing loss rules. But you also need to show that there’s a nexus between what you have now and what you experienced in service. So, Emma, can you tell us about how the Compensation and Pension Exam process works? Because that’s usually what VA will set up, if you file a service connection claim to try to figure out whether your current condition is related to service.

Emma: Right. And this can be sort of a stumbling point for many of our clients. I think many veterans in general and trying to get service connection for hearing loss and tinnitus. Because if you’re not claiming the condition until decades after service, which is very common and totally fine to do, please continue to do so. You might end up with a VA examiner saying, “Well, it’s been so long this veteran is aging, it’s very common for people to lose their hearing, I can’t possibly opine that.” You know, they’re Purple Heart combat Infantry Badge service, where they’re exposed to loud grenade fire in the middle of Vietnam and the height of the war caused their current hearing loss. So, they will set up the C&P exam.

I think it’s important at that exam for you to be open and honest about how long your hearing loss has been affecting you, when you first noticed it. And I think it’s fair to say that you didn’t really notice it until later in your life. But it’s always been there, you don’t really realize it until later. Because that’s very common too. Some people don’t know what tinnitus is. They don’t know why they have this buzzing sound. They’re not going to mention it at separation, they don’t want to get held up. So– But the C&P exam for tinnitus is and hearing loss is similar to a lot of other C&P exams, you go in and examiner looks at your claim file, they’re going to do these tests to see if you have hearing loss for VA purposes. And then they’re going to check some boxes and opine whether or not you’re in service incident is the cause of your current hearing loss.

Maura: Okay, all very important information because…

Emma: And a lot of information in that sentence. That was a lot long run on sentence.

Maura: Well, a lot of information. But also I think Emma touched on the thing that we see most commonly with the compensation and pension exams for hearing loss and tinnitus is that time and time again, the examiner is saying, “It’s been too long for their current condition to be related to their service in the 60’s or the 50’s, or the 70’s.”

And the reliance on the passage of time, it’s just not something that can on its own, preclude the possibility that your current condition is related to service. So if that is something that the examiner is saying, in your case, or if you just generally speaking, get an unfavorable opinion, and the examiner is not able to connect to your current disability to service– Nick, what are some things that you can do to combat an unfavorable opinion?

Nick: Sure, so one of the biggest things that we often try to do is work with a veteran and their families to obtain lay evidence, because although they can’t determine the precise severity of their hearing loss, because they’re not an audiologist. Hearing loss and tinnitus are both things that were our veterans competent to provide testimony on. They know that they have trouble hearing things. They’re able to detect problems that they have communicating with other people.

So, they can provide a statement describing how long they’ve had that problem, how long it’s persisted. And on that same end, a veteran’s family members, presumably have known them for a long time. They’ve lived with them day in and day out. And you know, when someone has hearing loss, you need to repeat things, you need to speak loudly in certain situations. So, if they can provide a lay statement to that effect, talking about how those problems have existed since service, that’s a way to sort of try and overcome a negative VA examination.

Maura: And then Emma, any other additional information that a claimant could submit if they’re trying to show that their condition is related to service?

Emma: Sure. So, I think going off of next point, hearing loss is a special condition like a couple other conditions that can be considered chronic. So, if you can show that you’ve had these complaints throughout time, one way would be lay evidence, and other way would be if you went to a private doctor, or anyone else, you decided to get some hearing aids, or amplification for your home phone. If you can talk about that and reported that even if at that time, it wasn’t hearing loss for VA purposes, but you had complaints of issues with hearing throughout time. That can also be helpful proof that you’re– That format, next nexus between your current disability and service.

Maura: And then I think the option that’s there, but it’s sometimes the most difficult to achieve is to just get your own opinion–

Emma: Right.

Maura: From a doctor. So, if a VA examiner is issuing a negative opinion, saying that it’s not– the evidence doesn’t support an access or a connection between your current condition and service, you can get another doctor to write an opinion, if that doctor is able to provide a favorable opinion. But that can be difficult. Sometimes there are issues with access to a doctor who’s going to be able to do that for you. But it is something that is an option, certainly. And sometimes it can be very powerful to have, obviously a medical professional talking about why there’s a link between what you have now and what went on in service.

Emma: But because VA is so specific about hearing loss, and it’s right in the regulation, you want to make sure that this person is a licensed audiologist and that they’re performing these two tests at the VA doctor. So if you can get your hands on a copy of that VA C&P exam and bring it to your audiologist and say, “I need you to perform these two tests.”, then that would be really helpful because I’ve seen VA time and again, we’ll throw out a private opinion if they don’t use that Maryland speech diverse discrimination test if they don’t test it the right threshold. Or if it’s not a licensed audiologist– If it’s someone who works for Miracle Ear, one of those sorts of standalone hearing loss, aid programs doors. It can be tricky. So– But definitely very powerful if you can get your own audiologist.

Maura: And that’s exactly what I was going to ask you too, just to make sure that it was clear, because I’m not sure if I asked it before. But it does need to be a licensed audiologist that’s performing these tests. So, keep that in mind. If you are going to try to ask a doctor or a medical professional to write an opinion on your behalf or if you’re just going to talk to them about whether there’s anything that they can help you with to fight a negative VA examiners opinion.

And in addition to some evidence that you can support with your original or your first claim for service connection, sometimes you might be in the position where you want to submit more evidence if you have to appeal a denial. So for instance, if you file your claim, the VA denies you, so you receive a decision denying your claim, and then you decide to appeal it, but there’s more things that you want to say, there’s more information that you want to provide VA with– Nick, can you tell us what the best way to go about that is especially given the changes to the appeal structure?

Nick: Sure. So, if you’re cases still in the old system where you filed a NOD or you filed a substantive appeal with your SOC, you can basically submit that evidence at any time. But there are certain rules that you need to follow in the new system. If you’re filing a supplemental claim with a previously denied appeals modernization decision, you can submit the new evidence with the supplemental claim.

But if you’re further along in the process, and your case is going to the Board, for example, you can only submit evidence within 90 days of filing an NOD and selecting the evidence docket. Or if you submit the– Select the hearing docket, you have 90 days after the date of the hearing and in which to submit that evidence. And if you’re in the Higher Level Review lane, you can’t submit the new evidence at that point. But obviously, you have options to send your case to the Board or to file a supplemental claim thereafter.

Maura: Perfect. Emma, anything you wanted to add to that?

Emma: You can switch lanes if you’re within a year of that initial decision. So, if you change your mind about what lane you picked, and you do have new evidence you could always switch.

Maura: Great. Once again, everyone we are here today at Chisholm, Chisholm and Kilpatrick and we’re talking about Hearing Loss and Tinnitus, and it looks like we have a question. And the question is from, I believe Roman, and he wants to know, whether a Marine veteran who was working daily on the flight line and the flight deck while he was deployed. What kind of evidence that person would need to establish a nexus that seems like between his current condition and service? And I think the important thing is that there– It seems like there have been several years that have passed since service. Eight years is what the question is saying. So, do we have any generic things that we could say about what steps might be appropriate to take given these facts?

Emma: Absolutely. I think that the generic steps of– Steps, any service connection claims this would apply, not just tinnitus but anything you’re claiming would be to file your claim. Tell VA why you think your current disability is due to service and as much as detail as you can. And then you unfortunately have to sit back and wait for them to one get your records and two hopefully get a medical exam. If you have a diagnosis from a doctor; all the better. But as much detail as possible.

Maura: Okay, great. Nick, anything you want to add?

Nick: Just in that specific case, you mentioned having documentation of the pay that you received for serving on the flight deck, it’s always a good idea to submit any service records that you do maintain copies of, because it can help substantiate your reports that you would have had exposure to the hearing loss while serving in your duties aboard the ship.

Maura: Right. Perfect. And then something that comes up from that question. Also, since the passage of time always seems to be an issue. Sometimes we see where people will supply VA with information about their post service noise exposure. So maybe it would be– And I think this is something that can come up anytime a VA examiner is saying, “Oh, it’s been so many years, and so it can’t possibly be related to service.” You can also let them know that you have spent many years after service without any significant hazardous noise exposure. Or maybe if you were exposed to noise on a regular basis, you wore hearing protection after service but not in service. Things like that can be helpful.

Nick: Sure.

Maura: So, we’re going to move on to secondary service connection really briefly, and then we’re going to talk about ratings. Nick, do you want to cover secondary service connection quickly, and just give us what it is and it doesn’t ever come into play in tinnitus and hearing loss cases?

Nick: Sure. So secondary service connection is where the condition itself isn’t necessarily directly related to service. But it’s developed as a result of our approximately due to some underlying condition that is Service Connected. It’s not generally speaking, a common thing that comes up in the context of hearing loss and tinnitus. But there are certain conditions that can manifest with other symptoms and then result in hearing loss and tinnitus later on. One example is traumatic brain injuries. And then it can also come up in the context of many syndrome. Where might manifest initially is vertigo, dizziness, things like that. And then hearing loss and tinnitus can manifest later on.

Maura: Okay, great. And I know we have other information on our website, and we have done other videos that are more in depth about secondary service connection. That on its own can be a little bit of a tricky area. So, you might want to reference those materials if you’re thinking that secondary service connection is relevant to what you’re claiming. So now we’re going to talk about ratings. Emma, how does VA rate tinnitus? There’s a specific–

Emma: 10-percent flat that’s it. You are not getting any more or any less. Is 10-percent. That’s it. You obviously can claim an increase rate for tinnitus. You are 99.5% not going to get it. You could always try for an extra scheduler rating for a unique condition. Maybe that objective tinnitus that Nick was talking about if you couldn’t write the underlying disease appropriately might warrant something jazzier. Because that really would be an interesting situation. But if you have just plain old tinnitus, you’re getting a 10-percent. And you’re getting one single 10-percent. You’re not getting a rating for each ear. So, keep that in mind, it’s 10-percent. It’s 10-percent. It’s 10-percent.

Maura: And hearing loss is different.

Emma: Right

Maura: So, tell us about how they rate hearing loss.

Emma: Hearing loss gets, again, even more mechanical and complex than just getting diagnosed with hearing loss for VA purposes. So, VA will take the results of that pure tone threshold test. And they’ll average it for each ear at certain frequencies. And then they’ll take it’s a grid chart, and they’ll take, let’s say you have 30 in one ear and 20, another ear. They’ll line them up and then it tells the rater what your rating should be, based on what level hearing loss they decided you have. Level one through I think level six, maybe? Seven?

Nick: I think it may go up to 10 or 11.

Emma: Oh, well, it’s very difficult. Let me tell you, to get past level one. You have to have real deafness going on. They make it very difficult. So, VA will take the averages, it’s a mechanical application, and it spits out what your rating should be. There are exceptions for exceptional patterns of hearing loss, there’s a different table, VA will use for that, but same thing I think applies is that. You can have some pretty severe hearing loss and still end up with a zero or a 10-percent rating. So just be aware of that.

Maura: And how do they rate? Do they rate both ears together? Or do they rate them separately? How does that work?

Emma: Yes, it’s one rating. Unless you have hearing loss and just one ear, and then they will rate that ear, but they’re going to give your left ear or right ear– The one that’s not impaired, the full rating. And so, you’re probably going to average up to something pretty low in terms of level of hearing loss. But you get again, same thing like as tinnitus as you get one rating for both yours.

Maura: And Nick, can you obtain– What’s the highest rating that you can get for hearing loss?

Nick: Sure. So, or so hearing loss is one of the conditions that VA consider is one severe enough to be totally disabling. So, hearing loss can in and of itself be assigned to 100-percent evaluation.

Maura: And are there any other avenues for additional benefits or additional compensation beyond just a scheduler rating is what we say when it’s based on the diagnostic code and the rating criteria for hearing loss?

Nick: Yes. So, there are a few things that come into play. If a veteran has a 100-percent evaluation for hearing loss, or hearing loss that’s more severe, the regulation directs them to specifically consider special monthly compensation. And then the regulation 3.350 tells them to assign at a minimum of K. At the K level, which is a little over $100 a month, based off of loss of use of the sense of sound. So that’s only assigned automatically if you have the scheduler 100-percent rating for hearing loss.

But if you suffer from additional disabilities that affect other aspects of your functioning, like vision problems, you might be entitled to additional higher levels of SMC. And there are also situations where if you’re hearing loss is so severe and you require the need of another person to assist you with the activities of daily living and other issues, you might be entitled to a higher level based off of that need for assistance from another person.

Maura: Okay, great. And again, I know that we have covered a special monthly compensation and other forums and through blog posts and videos and things like that. That gets particularly complicated-

Emma: Yes.

Maura: Beyond just a regular rating process for hearing loss. So, we would refer you to that in case any issues with SMC are coming up in your case. Emma, tell us about the possibility of obtaining additional benefits if you’re hearing loss or tinnitus prevent you from working?

Emma: Sure. So, you always can claim if it’s true, you can always claim that your service-connected disability is prevent you from working in an attempt to secure 100-percent benefit total disability due to individual unemployability. So, for folks that need hearing for their occupational experience vocational background, a lot of– I know truck drivers have to pass a test for DOT that requires hearing.

I could see someone that works in sort of a management safety type situation that needs to be able to hear other people. If you have a work history like that, and you’re hearing loss impacts your ability to work, you certainly need–can claim that with VA and explain to them why your hearing loss and or tinnitus together might prevent you from working, but it certainly is one of the options available.

Maura: And then it’s also possible to that you have multiple service-connected conditions where hearing loss and tinnitus might be one or two of them. And the effects of the hearing loss on the tinnitus are important to make VA aware of because all of those things can be positive evidence in favor of your entitlement to TDIU or unemployability benefits generally, if you if you’re working with multiple service-connected issues. And so, Nick, what kinds of evidence might a person wants to submit in support of a claim for an increase rating for hearing loss, because as Emma said before, increase rating for tinnitus is not happening. It’s a 10, a 10, a 10, I think.

Emma: It’s a 10.

Maura: Something like that. So, there’s no avenue there really but what about for hearing loss claims?

Nick: Sure. So, the most important thing, which is really to a point that Emma made earlier is just how mechanical VA process for rating hearing loss disabilities is. If you’re seeking an increase rating for your hearing loss because you know that it’s gotten worse, the best and first way that you should approach that is to see if you can get an opinion from a licensed state audiologist so that they can conduct the test that VA requires, and so that you can demonstrate an actual increase in your hearing loss and tinnitus.

Obviously, if you make the complaint, and you should have some evidence to substantiate the issue, VA will schedule you for an exam. But it wouldn’t hurt to get your own exam up front, if that’s a possibility. And then otherwise, as always lay evidence. It’s the way to go. You can describe the problems that you’re having, how it’s gotten worse since your last VA examination, and your family members can do the same.

Maura: Perfect. And I want to wrap up with a couple of things that you will think about, or things that you see frequently. Common mistakes or common pitfalls that are involved in hearing loss and tinnitus cases. Whether it be service connection, or increased rating. What are some things that we commonly see VA doing wrong? And what are some things that people should keep in mind when they’re pursuing these claims?

Nick: Sure. So, one of the more common things I’ve seen is VA relying on the veteran’s lack of complaints of hearing loss and tinnitus right when they get out of service. But oftentimes, the thing to consider is that one a veteran might not realize how bad their hearing loss is when they first leave service. And they might not know what tinnitus is until somebody tells them about, where many years later. So just because you didn’t complain about it in service, it’s not the end of the day, VA still needs to consider everything that you tell them about how long those conditions have been persistent.

Emma: I think a common– That I think is the number one pitfall for service connection, is an examiner relying on a clean separation exam, to say, “Well, there was no hearing loss and hearing loss doesn’t get worse, it just exists in this bubbly vacuum.” So that’s I think we’re service connection. That’s it. But for increased rating, I think it’s filing the increased rating claim without doing anything. And in anticipation of the fact that it’s really hard to get an increase rating for hearing loss. So just file the IR claim, sitting back waiting for the VA exam to happen.

Unless you really know that you’re hearing loss has shifted dramatically and those frequencies, which I think might be hard to perceive on your own, I think getting the lay evidence together describing how it affects your day to day life. Is it affecting you emotionally? Is it affecting relationships? Is it affecting work? Or other things happening because of your hearing loss? I don’t know, are you are you getting scared to leave the house because you’re concerned for your safety?  Anything you can do to describe how the condition has worsened beyond just I can’t hear, it’s getting worse, will be really helpful because it is hard to show just– It is really, really mechanical. At the end of the day, anything you can do to kind of push it forward to be helpful.

Maura: And it seems like we’ve been talking a lot about the importance of lay evidence and these kinds of cases. And so, something that comes to mind for me is that we commonly see VA question the claim – its credibility, or the veteran’s credibility. Sometimes they think, as Emma said before, if there were no issues noted on the separation exam, and there were no treatment records over the years for hearing loss, they take that to mean that the veteran is not credibly reporting that they have had symptoms over the years and things like that. So, I think in those instances, it’s important to try to get or pinpoint what’s really going on?

Why they’re really denying the claim and why they think that you are reports are not believable, for whatever reason. And if that’s happening, it totally helps to spell out in no uncertain terms, why maybe you didn’t have treatment over the years, why your separation exam might say that there was no hearing loss. And you know, why your reports, don’t undercut those things, or why they’re not inconsistent with those things. I know, I’m sure that you can both attest to the same thing that you see these credibility findings a lot when the lay evidence is so important. So, it can be critical to make sure you’re looking through whatever VA is relying on and submitting statements that can account for, you know, perceived issues that they’re seeing.

Nick: And one other important thing to mention, based off of Emma’s point about being explicit about explaining how it affects specific aspects about your daily life, is that hearing loss is one of the more common conditions that you see VA try to reduce, just because it’s one of those conditions that’s rated so mechanically. But if you’re able to show that even though your specific decibel measurements have gotten slightly better, you still have the same problems under the ordinary conditions of life and work that your current rating should still be maintained.

Maura: That’s a great point.

Emma: Absolutely.

Maura: Any additional questions? Perfect. Thank you all for joining us today. Once again, we’re here at Chisholm, Chisholm and Kilpatrick, and we hope to see you next time.