Citation Nr: 18146482 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-04 544 DATE: October 31, 2018 ORDER The claim of entitlement to service connection for right ear hearing loss is reopened; to this limited extent, the appeal is granted. REMANDED Entitlement to service connection for right ear hearing loss is remanded. Entitlement to an initial compensable rating for hypertension is remanded. FINDINGS OF FACT 1. Service connection for right ear hearing loss was denied in a May 2006 rating decision on the basis that the Veteran’s hearing loss did not qualify as a disability for VA purposes. New and material evidence was not received within a year of notice of the decision. The Veteran did not initiate an appeal of this decision and it became final. 2. Evidence received since the May 2006 denial was not previously considered by agency decision makers; is not cumulative and redundant of evidence already of record; relates to unestablished facts; and raises a reasonable possibility of substantiating his claim of service connection for right ear hearing loss. CONCLUSION OF LAW The criteria to reopen the claim of entitlement to service connection for right ear hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1984 to October 1987, from September 1988 to October 1998, and from June 2004 to November 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by the Department of Veterans Affairs (VA). In February 2017, the Veteran testified before a Decision Review Officer at a VA Regional Office (RO); the conference report is of record. In a May 2017 rating decision, the RO awarded service connection for sinusitis. This constituted a full grant of the benefit sought on appeal. That issue is no longer before the Board. In July 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ); a copy of the hearing transcript is of record. The Veteran also submitted new evidence at the hearing, along with a waiver of initial consideration by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20.1304(c). 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for right ear hearing loss The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. Service connection for right ear hearing loss was denied in a May 2006 rating decision on the basis that the Veteran’s hearing loss did not qualify as a disability for VA purposes. New and material evidence was not received within a year of notice of the decision. 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Since the prior final denial, the Veteran underwent a VA examination in March 2017. The examiner provided a positive nexus opinion, relating the Veteran’s hearing loss to in-service acoustic trauma. As this evidence was not before VA or considered in the prior denial, it is new. As it aids in establishing a nexus, an element of service connection not previously shown, it is also material to the claim. Accordingly, new and material evidence has been received. The claim of entitlement to service connection for right ear hearing loss is reopened. 38 C.F.R. § 3.156(a). The reopened claim will be further discussed in the REASONS FOR REMAND section below. REASONS FOR REMAND 1. Entitlement to service connection for right ear hearing loss is remanded. The Veteran seeks service connection for right ear hearing loss. Remand is required for further development. During the July 2018 Travel Board hearing, the Veteran testified that his hearing has worsened since his last examination in March 2017. Hr’g Tr. 11. He is competent to relate such a readily observable fact. 38 C.F.R. § 3.159(a)(2). There is nothing of record to impugn his credibility. Accordingly, reexamination is warranted. 38 C.F.R. § 3.327(a). The Veteran also testified that his hearing was evaluated during an appointment with his new primary care physician, Dr. J.C. Hr’g Tr. 8-9. On remand, the Veteran should be asked to submit, or authorize VA to obtain, any non-VA medical records relevant to his right ear hearing loss, to include those from Dr. J.C. 38 C.F.R. § 3.159(c)(1). 2. Entitlement to an initial compensable rating for hypertension is remanded. The Veteran seeks an initial compensable rating for hypertension. Remand is required for further development. During the July 2018 Travel Board hearing, the Veteran described his private treatment history. He testified that from approximately 2011 to 2017 his primary care physician was Dr. T. and in 2017 he switched to Dr. J.C. Hr’g Tr. 5-6. He reported that, generally, his blood pressure was measured at each appointment. Id. A review of the claims file shows records from Dr. T. were obtained, but only through May 2013. Moreover, the claims file only has a single treatment record from Dr. J.C., dated July 2018, that the Veteran submitted. Accordingly, the Board has been placed on notice that there exist relevant outstanding treatment records from both physicians. On remand, they should be obtained. 38 C.F.R. § 3.159(c)(1). The matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Ask the Veteran to submit, or provide authorization for VA to obtain, all non-duplicative private treatment records related to his right ear hearing loss or hypertension, to include records from Dr. T. and Dr. J.C. If such records are not found, the claims file must be clearly documented to that effect and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination to determine the current severity of his hearing loss. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. A medical nexus opinion concerning the right ear hearing loss is not needed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mike A. Sobiecki, Associate Counsel