June 18, 2019

Veterans and Hearing Loss: VA Requirements

Between the years of 2003 to 2015 the 3M Company and its predecessor, Aearo Company, supplied the military with 3M earplugs to prevent injury to hearing from the loud noises of airplane engines and gunfire. In a False Claims Act Lawsuit known as the 3M Earplug Lawsuit, the company was sued, and they paid a claim of 9.1 million dollars because the earplugs were defective, the company knew they were defective, and failed to disclose it.

Hearing damage and hearing loss is a widespread occurrence in the military. The most common areas where these noises occur are in artillery, the infantry, proximity to airplane engines, and the armor division. The loud sounds of close-range rifles and loud impact noises can have a lasting effect on hearing loss.

Research on Hearing Loss in the Military

In 1992, there was a study of Finnish military conscripts who were actively involved in the firing range. It was determined that after 200 – 300 rounds of ammunition were fired from the rifles that there was a clinical loss of hearing, but not necessarily noticeable to the person involved.

In 1995, a study of thousands of US military personnel, roughly divided into groups of high and low-noise specialties, showed that, despite hearing conservation measures instituted in the 1950s, soldiers in the infantry, artillery, and armor divisions had greater hearing loss than did their counterparts in other areas of service.

This survey also pointed out the difficulty in finding accurate data on the soldiers from that time in history. Only about 25% of those who were active at that time had hearing tests available through the hearing conservation program. This has proven to be a challenge to the VA, and the veterans claiming hearing loss.

This lack of clear documentation is an obstacle because it is hard to determine whether the hearing loss was attributable to a military related activity or just the natural aging process. A veteran who experienced hearing loss during service might not notice the hearing loss until later in life. Unless there is documentation, it is hard to establish this connection.

The Veterans Hearing Loss Compensation Act of 2002

Under the Veterans Hearing Loss Compensation Act passed on August 1, 2002, a Committee Bill; Section 103, would permit the VA to authorize the “presumption of a service connected hearing loss” if a person served in certain areas of specialization if that hearing loss “presumption is documented by an outside scientific authority.”

As a result, the VA was required to enter into an agreement with the National Academy of Sciences (NAS) to review data related to loss of hearing, tinnitus (ringing in the ears), or partial loss of hearing. NAS was charged with investigating whether there is a connection between hearing damage caused immediately while in service or whether hearing impairment can result over time. They were also given the task of determining what areas of military service were most likely to cause hearing loss.

Based on the findings of the NAS and the VA’s own review of its records pertaining to data on hearing loss victims, the VA could be given the authority to maintain the presumption that hearing loss claims could be awarded to those veterans who may have experienced a hearing loss, but one that did not surface until later in life.

Why is this Important Information?

In effect, this new law removes the need for a veteran to establish “total deafness” before making a claim, and it allows the VA to consider partial non-service-connected hearing loss.

It is crucial for veterans who think that they may have hearing loss due to military duty, even in the past, to contact the VA benefits division or a qualified personal injury lawyer like Eileen Kroll at Cochran, Kroll & Associates, P.C. who is aware of this provision in the Compensation Act of 2002.

The 3M Lawsuit

A Minneapolis based 3M company designed the 3M Earplugs for hearing protection from close range firearms and loud impact noises. Due to defective design, the earplugs can slightly loosen and move out of the ear canal just enough for loud sounds to cause hearing damage. According to reports, these earplugs were sold to the military from 2003 to 2015. What is most disturbing is that the 3M company knew about the defective earplugs but sold them anyway.

Many service members who used these earplugs have suffered hearing loss, tinnitus or ringing in the ears, permanent hearing loss, or even deafness. There may also be damage to other parts of the ear that only a qualified doctor or audiologist can diagnose.

As a result of the 3M Earplugs Lawsuit in July of 2018, the 3M company agreed to pay $9.1 million in a False Claims Lawsuit to settle allegations that they knowingly supplied the US military with defective earplugs.

Requirements for a Claim

To qualify for benefits under the Compensation Act of 2002, the veteran needs to prove that he or she has a hearing loss condition while on military duty. The veteran must prove that the hearing loss is connected to the military duty and that there is a current diagnosis that the condition exists. Also, there must be evidence of an event in the military that caused the hearing loss, and finally, a medical opinion linking the hearing loss to the event.

Hearing Loss Testing Requirements

To prove that the hearing loss is connected to military service, the hearing loss must be diagnosed by a certified audiologist and must include two tests. The first test is a Maryland CNC test that measures speech recognition ability, and the second is a puretone audiometric test to measure the loss of hearing. The VA requires both tests. In addition, no hearing aids of any kind can be used during the test.

Tinnitus is a noise that is heard in the ears as a buzzing or ringing that happens consistently. It does not matter whether you have the ringing on one ear or both ears. The award is treated as if it is only in one ear. However, if you have a hearing loss as well as tinnitus, you can make a claim for both.

If there is no noticeable hearing loss until after you leave the service, do not assume that there are no benefits and that you do not have a claim because the hearing loss is due the natural aging process. If you can prove that you worked in an area of “high noise” during your time in the service, then you may be able to make a claim. Here is another perfect time to contact a personal injury lawyer at our law firm especially if there might be a connection to the 3M Earplug Lawsuit.

Filing a Claim Against 3M

If you have hearing loss, and you are not sure that it will be covered through the VA, then you still have the option of filing a claim directly against the 3M Company. Since this claim will be outside of the VA, you will need the assistance of a medical attorney or a personal injury attorney at Cochran, Kroll & Associates P.C. Claims can be made for pain and suffering, medical bills, past lost wages, future lost wages, punitive damage, permanent or temporary disability, or loss of enjoyment of life. Further consultation with your attorney may provide even more information based on your unique situation.

To file a claim, you must have served in the military between 2003 and 2015, and you have to have a diagnosis of tinnitus from a doctor around the time of discharge, or data proving a hearing loss through approved medical tests.

Hearing Loss Rating System

A general examining physician cannot perform the tests necessary to determine a hearing loss. Only a licensed audiologist can conduct these tests. In addition, it should also be noted that it is very difficult, if not impossible, to fake a hearing loss as the tests are designed to uncover someone who is attempting to falsify the test.

The hearing loss system is complicated. Ratings for hearing loss are based on both ears. Each ear is not rated separately, and only one rating can be given for both ears. Even if an ear has no hearing loss, it is factored in to give an overall rating of hearing loss.

In the first test, the Maryland CNC, the participant will be asked various words in a controlled environment and be asked to repeat them back. The results are percentages, and these percentages will be used to determine the final rating.

The second test, the puretone audiometry test, measures the loudness (decibels) and the pitches (frequencies) when the participant can hear the first sound.

Once the test results are in, the tester will apply them to a pre-designed graphic table, and the amount of hearing loss will be determined. This table uses roman numerals to indicate various levels of hearing loss, and therefore, the final results will be in roman numerals according to the chart.

Without going into the science of hearing and rating hearing loss, it is fair to say that this process will determine whether there is a loss of hearing, and it will also lead the evaluator to identify different types of ear injuries and conditions that may be causing the loss of hearing. These conditions could include Ostoclerosis, abnormal growth of the bone in the middle ear, tympanic membrane or torn eardrum, or tinnitus. This is not an all-inclusive list, so it is always best to seek the advice of a medical attorney at our law firm.

How to Make a Claim

The first step to filing a claim is to contact a VA representative to seek out their advice and to obtain the appropriate forms. Remember, you will have to arrange for two required hearing tests and documentation with proof that your hearing loss is connected to military service. Your VA representative may be able to assist you in scheduling these appointments and securing this proof of service. The form used in this application is VA FORM 21- 526, Veterans Application for Compensation and/or Pension.

A second approach is to look at the Veterans Administration Website. The old website known as VONAPP is no longer in use, so you need to log in to www.va.gov to get up to date information and forms.

A third approach, and possibly the best approach, is to contact Eileen Kroll, a registered nurse and personal injury lawyer who has an intricate knowledge of the VA claims system as well as the litigation surrounding the 3M Earplug Lawsuit. Eileen can provide you with all the forms, contact the military records department to find proof of service, and arrange for the hearing tests with qualified audiologists.

Summary and Final Note

The veteran who has served in an area of the military that is prone to producing loud noises and repetitive high impact noises like those from firing a rifle, can experience hearing loss either immediately while still serving active duty, or later in life when the hearing loss magnifies over time. If he or she experiences a loss of hearing later in life, it should not always be attributed to old age, even after the age of 65. The Veterans Hearing Loss Compensation Act of 2002 and the 3M Earplug Lawsuit are two good reasons why the Veteran should apply for compensation and benefits if there is a loss of hearing. There is no longer the requirement to be “totally deaf” to make a claim. In addition, there may be other factors within the complex mechanisms of the ear that were affected during military duty, and these can also be addressed with the right kind of investigative claim.

Contact Us

If you or a loved one served in the US military during 2003-2015 and suspect you may have hearing loss or tinnitus, please contact trial attorney, Eileen Kroll at Cochran, Kroll & Associates, P.C. by calling toll free at 1-866-MICH-LAW (1-866-642-4529) for a no obligation consultation. You can also request an evaluation of your case to determine your eligibility for compensation by completing our online contact form. Our lawyers never charge fees or costs unless they win your case.

Ms. Barry is studying Communications at the University of Pennsylvania. She has won multiple awards both for her persuasive and creative writing and has written extensively on the topics of medical malpractice law, personal and birth injury law, product liability law. When she’s not researching and writing about these topics, she edits a literary magazine and tutors students at Penn’s writing center.

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