аЯрЁБс>ўџ 24ўџџџ1џџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџьЅСM №Пњbjbjт=т= "*€W€WњџџџџџџlJJJJJJJ^‚‚‚‚ Ž^eNЎЎЎЎЎЎЎЎфцццццц$Г гš JЎЎЎЎЎ дJJЎЎдддЎ"JЎJЎфдЎфд дфJJфЎЂ ргћОЧ^$‚аdфф50eфm4 mфд^^JJJJйC- 044-34-8461 Cotnoir, Charles J. I have reviewed your “Supplemental Statement of the Case” (SSOC) dated April 17, 2007 and I wish to respond. I disagree with your findings for both ears for the following reasons: 1) In the Audio Exam, the Speech recognition scores are in error. The following facts are offered: I was given two speech recognition tests. The first test was given in the following manner. First the examinee was seated in the booth with the headphones on. Then, the examinee was exposed to the words that would be used in the evaluation. This part of the test is a review of the words that the examinee will hear in the test. The speaking volume of this part of the test was set so that the examinee would clearly hear and understand the words that would be used in the test and would recognize them when he heard them in the actual test. I disagree with this method of testing, where the examinee already has in his memory the words that he is supposed to hear. The examinee is using his memory to put parts of what he hears together with the words that are in his memory. Since the examinee has heard the words twice, it is more likely that the speech recognition score is going to be falsely higher than if the examinee heard the words once, as in a normal conversation. This method of hearing evaluation does not adequately reflect real speech recognition ability. This method of testing seems to defeat the purpose of a true measurement of the ability of the examinee to recognize random words. Prior to the test, I asked the examiner what I should do if I didn’t recognize a word. The examiner told me that I should guess at the word. Again, guessing at a word that is being repeated for the second time uses memory, rather than auditory ability and following this instruction will only falsely inflate the score. Not withstanding the above, I believe that my speech recognition score on this first test was much lower than 98% because many of the words were not recognizable other than as a murmur of sound, to which I did not respond because I could not recognize the word. The second test was conducted at a much higher volume than the first test. In fact, it was conducted at a volume that was much higher than normal conversational speech. On at least two answers, I could not discriminate the word and I answered with two words. The examiner at each of those times stopped the exam and rewound the tape to repeat the word, apparently until I got it right I believe that the result of this second test was inflated because of the volume and I also believe that, of the two speech recognition tests, the VA chose to ignore the results of the first test because it had a lower score and chose to use the test where higher results were achieved, contrary to 38 U.S.C. Ї 5107(b. 2) The rational for the VA’s denial is based on an absence of a conclusion, rather than on an interpretation of 38 CFR 3.385 In all of the previous VA denials for this claim, the rational for denial was that 38 CFR 3.385 applied and was not satisfied: Ї 3.385   Disability due to impaired hearing. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. [59 FR 60560, Nov. 25, 1994] The results of this test do show that a 45 db hearing loss exists for the 4000 hertz frequency. This satisfies 38 CFR 3.385 In this case, the following rational for denial was stated by the VA: “While there is hearing loss at the 4000 Hertz range, the audiologist noted that you had a considerable amount of impact ear wax in the right ear. In addition, there was 15 db air-bone gap at the 1000 Hertz rang and a 10 db air-bone gap at 4000 Hertz. Therefore, the examiner could not conclude that you had true high frequency hearing loss in the right ear”. This statement errs in numerous ways. First, the examiner, prior to testing, examined both ears and did discover wax in the right ear and did remove some wax from the right ear with a loop. Second, since, after removing wax from the right ear, the examiner determined that wax remained in the ear, the examiner was bound to make a judgment that the impact wax would either affect the test score or would not affect the test score. If the examiner concluded that the results of the test would be false because of impact wax, then the examiner should have taken steps to remove the wax, prior to testing, in order that the test results would be true. Conversely, if the examiner, using her experience as an examiner, concluded that any remaining wax would not affect the test, then the test results must stand as true. Because the examiner performed the test and performed it in its entirety, it is reasonable to conclude that the examiner concluded at the outset that impact wax would not be an erring factor in the final test score. Further, for the examiner to conclude that the test results for the 4000 db range are false because of impact wax in the right ear is an opinion rather than a fact because the conclusion was arrived at in retrospect. Thirdly, in the matter of air-bone gap, the VA states for that there is an air-bone gap of 15 db at the 1000 Hertz range and a 10 db air-bone gap at 4000 Hertz and uses this to support their decision for denial. The VA, in their denial, stated that they could not conclude that the test results were true because there is an air-bone gap. If the VA cannot substantiate its test results, then the VA must conclude that the test results are more likely than not to be true. Further, if the air-bone gap is a factor in the test’s false score, then because the air-bone gap exists, the VA must determine if the air-bone gap is related to military service or is a factor influenced by military service. Fourthly, 38 CFR 3.385 says nothing about exceptions to this regulation, such as wax or air-bone gap, nor does it say anything about medical opinions or the lack, thereof. Either the regulation is satisfied or it is not. If the test results satisfy the criteria, then the VA must grant the disability. Therefore, since the results of the test show that there is sufficient hearing loss of 45 db in the 4000 db range, the VA must grant the disability for the right ear. In the matter of the Speech Recognition test, the results of the first test should have been noted and cited in the SSOC. If the test scores were lower in the first test than the second test where the results were 98%, the VA should have given the examinee the benefit of the doubt and used the lower score in their statement. 38 U.S.C. 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