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Hearing Loss Appeal to VAB

prairefire

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I am in the process of preparing a hearing loss appeal. I applied for a hearing loss claim and was denied because there was no discharge audiogram on my file even though 2 previous audiograms done 4 years apart but 6 years before my release show progressive hearing loss. I do not know where the discharge audiogram went when I have never had care or control over my med records. While doing my own research for the appeal I came across this Federal Court decision which I am posting the link to. I believe that it is an important decision that basically states that the Pension Act supercedes the regulations and that the Dept and the VRAB must follow the act and not regulations where there is a conflict. If this is new great. If you have seen it before than I hope it refreshes members memories................

Nelson v. Canada (Attorney General), 2006 FC 225 (CanLII)
http://www.canlii.org/eliisa/highlight.do?text=veterans+appeals&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/fct/doc/2006/2006fc225/2006fc225.html&searchUrlHash=AAAAAQAQdmV0ZXJhbnMgYXBwZWFscwAAAAAAAAE
 

maniac

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This is shaping up to be a classic, "benefit of the doubt".  Upon release you should have done part I and II medicals which include the test that you are alluding to.  If they failed to do it or lost the records that is beyond your control.  My suggestion is do an DND ATI for your medical records asap.  Call the BPA and ask for a Dept Review of your case rather than rush to 1st appeal,  this approach may sort out the problem and save you an appeal level in case you need it.

BTW,  if they failed to do complete med pt II,  you will not get VocRehab with VAC because they need that to provide svcs to a declared released veteran.  Don't under estimate this benefit,  if you loose your job or have to accept less pay,  wage loss earning as part of the VocRehab program will be available.
 

ArmyGuy99

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Here's some friendly advice.

If you can afford it somehow.  Get your own lawyer.  Do not rely on the BPA Lawyer.  Mine must have been last in her class at law school and just graduated.  I lost my appeal and due to other health issues I missed my appeal of the appeal window. (but that's OK, my reassessment will be higher anyway).

I read the full decision and it's a great case-law.  Some good info in there that I wish I had known about 8 months ago. 

Please keep us informed, will be watching, and willing to offer advice if wanted or needed.

Cheers
 

prairefire

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Thank you for your suggestions and advice. I had asked for the departmental review and received the same answer as the first time around...... Not eligible because there was not an audio-gram on my file at the time of release to prove that my hearing loss was service related.  I do have a lawyer who is providing me with assistance in the legal research and interpretation. In order to keep the costs down I am doing a lot of the legwork myself and then working with him to prepare the appeal brief. I am using the BPA lawyer here to get the process rolling but I do plan to ensure that the legal arguments are prepared based on previous case law.

I have all my medical records from a previous ATI request and there is other information in there that relates to the hearing loss when I was in the German Army training area in Hammelburg where we were doing room clearing drills. I entered a room with my signaller when a couple of flash bangs or ?arty sims went off and I was little thrown down a flight of stairs and it took two days for my hearing to return to normal, never mind my sprained ankle and head ache.   

I have been in receipt of a 20% pension since 1990 for a back injury from a winter night drop but this is my first interaction with DVA since the New Veteran's Charter has been in effect.

If you think it useful I will continue to update my post with information and my research on an ongoing basis.

Thanks for your support and advice.
 

maniac

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The appeal is a legal argument which is evidence based,  sounds like so far you have absence of evidence. It's not like you can go back to DND/CF because your in the hands of VAC at this point.  If you are a B Client already,  it's pretty simple.  Save any appeals until you have the test,  I believe you need to be H3 or lower before they even entertain hearing loss. If all they want is an audio gram,  then why don't you go to your VAC CM and ask for one to support the claim.  Ask a medic on this sight what was suppose to be done on pt I & II release medical and look through your docs for anything that supports it,  if it's not there well again, that's where the argument is and why you are in appeal.  This is where you challenge what should have happened but did not and outside of your control.

I'm not saying that getting a lawyer isn't a good idea but it might be a little early.  This approach needs to be assessed at cost vs benefit.  Since it is hearing loss,  the pay out is relatively low.  You will be asked if you have exhausted all attempts at appeal within the VAC claim and appeal processes first.  As I stated in earlier posts, the VAC Ombudsman's office maintains a list of probono lawyers,  you just need to call them.
 

prairefire

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I have had the audiogram and it shows hearing loss well over the pensionable thresh hold. This is about getting coverage for a hearing aid, any monies would be a benefit of course. When I looked into the cost of hearing aids I was just a little shocked at how much they cost.

When I left the service in  1989 some of the strict release protocols that are in place today were either not existence or not being rigidly adhered to. From anecdotal evidence and discussions with other individuals who were released at that time,  missing medical documents at the time of release was a not uncommon occurrence.

I am sure things are better today, or I am being unduly optimistic.................... ???
 

prairefire

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Update to my entitlement review.  My VRAB hearing is scheduled for July by video conference. I guess I will know in about 8 weeks what the decision will be.

I am posting some links to papers on Hearing Loss. For anyone that is applying for hearing loss or wanting to research the issues these 3 papers are very good, and fairly easy to read for the non-technical among us. In one of the papers they discuss specifically about the effects of solvents on hearing loss. Something that I did not know about at all. I hope that it is useful for some of you. Hear are the links:

Protecting Crew Members against Military Vehicle Noise
http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA446747
Noise-Induced Hearing Loss in Canadian Military Personnel
http://www.dtic.mil/cgi-bin/GetTRDoc?AD=ADA454605
Measurement of Noise and Vibration in Canadian Forces Armoured Vehicles
http://www.jniosh.go.jp/en/indu_hel/pdf/IH_45_2_318.pdf
 

prairefire

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I had my hearing by video conference on July 4th and all went very well.  Today, which is August 6th I received the letter from VRAB granting me the Hearing Loss Entitlement at 5/5ths. I am very happy with the quick response and the result.  Thank you all for your suggestions and advice. Now I just need to wait for DVA's calculation on what that means per centage wise.

If there is any assistance that I can offer to anyone on a similar claim please do not hesitate to ask. I am no expert but I do believe the more info we share with each other the greater the likelihood of success.
 

EX--Royal

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Not sure if you are still keeping an eye on this forum, but i just thru VAC for hearing loss. Should i have any documents other than my medical audiograms? This is all new to me, it's my first time applying thru VA. Should be a treat.

Thanks,
 

blackberet17

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prairiefire, depending on when you had your first decisions on your hearing loss, simplest way would most likely be to contact your BPA rep.

Following the Nelson Federal Court decision, VAC reviewed its hearing loss adjudication guidelines, and in the last few years, has been reviewing its prior decisions on hearing loss. It's a time consuming process, and some of those prior decisions may have been missed.

As suggested prior, request a Departmental Review, which you would do through your BPA rep, of your hearing loss claim.
 

George Wallace

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EX--Royal said:
Not sure if you are still keeping an eye on this forum, but i just thru VAC for hearing loss. Should i have any documents other than my medical audiograms? This is all new to me, it's my first time applying thru VA. Should be a treat.

Thanks,

Tried that years ago by including my medical docs from the unit.  Got a PFO from VAC.  Letter also stated that the levels of hearing tested by the CAF did not match the levels of hearing they charted; which did not make sense to me.  In frustration I gave up.

VAC has documented testing of which Trades have the most hearing loss, so it should have been a non-brainer for them to make a decision. 

A survey of most older Armour soldiers (pre crew helmet) will find that they have hearing loss in the Left ear, as that was the ear they always had a headset on, the other side up for SA.  If that is not a recognizable anomaly, then I question how VAC does its testing and makes decisions.   
 

Rifleman62

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http://reports.fja.gc.ca/eng/2007/2007fca200.html

Citation: Nelson v. Canada (Attorney General), 2007 FCA 200, [2007] 4 F.C.R. D-11

Date: May 25, 2006

Docket: A-158-06

PENSIONS

Appeal from Federal Court decision (2006 FC 225) granting application for judicial review of decision by Veterans Review and Appeal Board (VRAB) denying respondent pension disability benefits under Pension Act, R.S.C., 1985, c. P-6, s. 21(2)—Respondent suffering from high frequency hearing loss in left ear allegedly due to excessive noise exposure during course of military service—Applications Judge concluding VRAB erred in law by relying on Minister’s guidelines on hearing loss contained in Table of Disabilities to determine if respondent had disability rather than applying definition of “disability” contained in Act, s. 3(1)—Interpretation of “disability” in s. 3(1)—Appeal dismissed.

Nelson v. Canada (Attorney General) (A-158-06, 2007 FCA 200, Richard C.J., judgment dated 25/5/06, 13 pp.)

 

blackberet17

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We could dedicate an entire subsection on hearing loss and tinnitus under this category.

From **http://www.veterans.gc.ca/eng/services/after-injury/disability-benefits/benefits-determined/entitlement-eligibility-guidelines/hearing_loss:

Revised Diagnostic Standard
(Updated February 2012)
For VAC purposes, normal hearing exists where there is decibel loss of 25 dB or less at all frequencies between 250 and 8000 hertz.

For VAC purposes,a hearing loss disability exists when there is a Decibel Sum Hearing Loss (DSHL) 100 dB or greater at frequencies of 500,1000, 2000 and 3000 Hz in either ear, or 50 dB or more in both ears at 4000 Hz.

For VAC purposes, a non-disabiling hearing loss exists when there is decibel loss greater than 25 dB at frequencies between 250 and 8000 hertz (inclusively), and this loss is not sufficient to meet VAC's definition of a hearing loss disability.

A hearing loss disability can be considered to be partially caused by service factors, when there is decibel loss greater than 25 dB evident on the discharge audiogram in at least one of the frequencies between 250 and 8000 Hz (inclusively); and a hearing loss disability is established after discharge.

The presence of a hearing loss and the type of hearing loss may be determined from an audiogram. Diagnosis of the type of hearing loss may be made by a clinical/licensed/certified/registered audiologist or a qualified medical practitioner.

The cause of the hearing loss cannot be determined from an audiogram alone. The history from the patient, the physical examination and relevant test results must be considered along with the audiogram findings.

**if anyone could help me with better linking, I'd really appreciate it. I keep trying the "insert hyperlink", but can't seem to 'simplify' it, so the whole link doesn't appear, but by simply clicking a key word (i.e. 'here' or some like) you go to the right page...I used to know how, but my computer classes date back to typewriters...

To explain a little what Rifleman62 posted (summary of Fed Court decision in Nelson case), prior to Mr. Nelson's appeal to the Federal Court, and the subsequent decision, it had been "SOP" (used somewhat loosely) to use the definition of a "hearing disability" as per the Table of Disabilities (ToD).

As most folks with any degree of VAC knowledge know, the ToD (regardless of edition) is used to assess (%) disabilities...it should never have been used to "define" what constituted a "disability". That's what VAC's Medical Guidelines and Entitlement Eligibility Guidelines are for...which VAC subsequently updated following the Nelson decision, IOT provide a clear definition in the EEGs as to what constitues a hearing disability.

These two attachments may help others understand hearing loss a little more.
 

EX--Royal

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I've gone from H1 to H3 so i'll fight the battle, not sure if it will be a winning battle. I expect to be refused any benefits on my first claim as this is usually the case from what i've heard. An appeal will follow.
 

blackberet17

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If it is your first claim for your hearing condition, it won't be an appeal if you're refused. Strongly suggest you request a Departmental Review. If you are turned down again, then request a review from the Veterans Review and Appeal Board. Still dissatisfied, request an appeal from VRAB.

Going from H1 to H3 is not necessarily indicative of hearing loss disability by VAC standards, as indicated above. The V CV H G O A are simply the medical categories used by CAF.

Further, a H3 category is the minimum medical standard for 75+% of military occupations. See attached chart.

When submitting your claim, ensure you have a recent audiogram. Remember, VAC needs to see the condition is chronic, i.e. present for six months or more. So if your last audiogram was in September, it wouldn't hurt to get another one done now. Most provinces cover audiograms, all you need is a referral from your treating physician. Otherwise, costs range from $60-100, which most medical insurance plans cover, AS LONG AS YOU HAVE A REFERRAL...so six of one, half dozen of another.

It doesn't hurt to have something of an autobiography as well attached to your Application for Disability Benefits. There is the space for what's called the Applicant's Statement, but it's a small space. Feel free to incl additional sheets. Be as clear as possible, but include as many details as you can remember.

For example, include all occasions you were on the range, or fired wpns without adequate hearing protection, ex. when on your SQ and doing sctn attacks, did you have time to put on hearing protection? You may think "It was just blanks", but hey, I was a C9 gunner on all sctn attacks except when I lead, so I was firing 2+ boxes per sctn attack, without hearing protection...bloody ringing in my ears will attest to that :)

Include a copy of the Task Statement relevant to your trade (http://www.forces.gc.ca/en/about-policies-standards-medical-occupations/cf-mosid-task-statements.page?).

Most claims are turned down at the first level (Minister's Official Decision is now considered "first level") because there is insufficient evidence in the file indicating a service relationship between the claimed condition and military service factors. Sometimes it's as simple as having a complete statement from yourself, full of details; having CF98s for any in-service injuries; witness statements; doctors' opinions (and from specialists when possible, your GP commenting on your major depressive disorder isn't as "good" as a psychologist's opinion); and what's called a "continuity of complaints" - medical evidence (MIR visits, doc consults, physio reports, CT scans, MRIs, etc) demonstrating an injury related to service factors which DID NOT resolve itself (such as a soft tissue injury), continued to present itself, causes you pain and suffering, and is STILL disabling today.

That's about all I can think of for now...the rest (audiograms in service, any consultations/complaints of ear problems such as from visits to MIR, etc) will hopefully (yes, I did say hopefully, it happens) be in your service medical docs.
 
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