Citation Nr: 18148090 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 15-25 723 DATE: November 6, 2018 ORDER New and material evidence having been received, the petition to reopen a claim of service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The evidence received since the final April 1974 rating decision is not duplicative or cumulative of evidence previously of record and it raises a reasonable possibility of substantiating the Veteran’s claim of service connection for bilateral hearing loss disability. CONCLUSION OF LAW The criteria for reopening the claim of service connection for bilateral hearing loss have been met. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1950 to July 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. Whether new and material evidence having been received to reopen a claim of service connection for bilateral hearing loss. Applicable law provides that a final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. The credibility of the evidence is presumed in determining whether new and material evidence has been submitted. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In the instant case, a rating decision in April 1974 denied service connection for bilateral hearing loss. The decision found that the Veteran’s hearing was within normal limits. He did not appeal the decision and thus the decision became final. 38 C.F.R. § 20.1103. The Veteran filed a claim to reopen the bilateral hearing loss issue in April 2014. In August 2018, he testified at a Board videoconference hearing that during service he oversaw training programs that required him to routinely visit the flight line and that he did not wear hearing protection over a period of approximately 4 years to include service in Vietnam. Furthermore, after his deployment to Vietnam his work phone was fitted with a “special hook up” so that he could hear better while talking on the phone. He had to receive special authorization to have the device installed. The Veteran’s testimony provides a potential in-service incident that could be related to his current hearing loss. In September 2014, VA provided the Veteran with a VA examination and the results reflect a bilateral hearing loss disability for VA purposes. Additionally, as will be discussed further in the remand portion of the decision, the file appears to contain missing medical records related to the Veteran’s military service in Vietnam. Thus, after review of the record, the Board finds that new and material evidence has been received to reopen the claim of service connection for bilateral hearing loss. The Veteran’s testimony regarding the device that was placed on his phone in order for him to hear and the 2014 VA examination results are both material to proving his service connection claim. REASONS FOR REMAND Entitlement to service connection for bilateral hearing loss is remanded. As noted above, the Veteran served on active duty from October 1950 to July 1973. A review of the file reveals that his personnel records are intact. However, his service treatment records (STRs) appear to be missing significant periods of his service. There are medical records that show clinical care on individual dates from October 1950 to October 1958. After October 1958 the file contains his entrance and separation examinations along with the accompanying reports of medical history for each of his re-enlistments. There is a significant lack of individual Chronological Record of Medical Care dates that would show dates of clinical treatment for any ailments for the remainder of his career from October 1958 to his discharge in July 1973. When compared to treatment records for the period of October 1950 to October 1958, there is a glaring difference in individual dates of clinical treatment. Specifically, there are no medical records showing any treatment while he served in Vietnam for approximately one year and virtually no individual dates of clinical treatment after Vietnam. His file contains an award for a Bronze Star Medal for his service in Vietnam from June 1967 to May 1968, which corroborates his asserted deployment to the theater of operations. As such, remand is warranted in order to make another attempt to try and locate his dates of clinical treatment while on active duty from October 1958 to his discharge in July 1973. Additionally, updated VA treatment records should be associated with the record on remand. See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.) The matter is REMANDED for the following actions: 1. Update/Obtain VA treatment records from September 2017 to the present. Document all requests for information as well as responses in the claims file. 2. Request verification from the Joint Services Records Research Center (JSRRC) or other appropriate repository for verification of the Veteran’s service treatment records from October 1958 to July 1973. Specifically, Chronological Record of Medical Care showing individual dates of clinical treatment for the period in question. 3. After completing #1 and #2, request a nexus opinion from audiologist regarding the etiology of his current bilateral hearing loss for VA purposes. The audiologist is to note the Veteran’s service in Vietnam, to include visits to the flight line; his authorization for a special phone hook-up as a recruiter; and the lay statement from the Veteran’s daughter that she did not notice a difference in the Veteran’s hearing when comparing it before and after a fungal infection. A comprehensive rationale is to be provided. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel