Citation Nr: 18148371 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-23 958 DATE: November 7, 2018 ORDER 1. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for bilateral hearing loss. 2. New and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for tinnitus. FINDINGS OF FACT 1. The May 2014 Board of Veterans’ Appeals (Board) decision that denied service connection for bilateral hearing loss was final. 2. The May 2014 Board of Veterans’ Appeals (Board) decision that denied service connection for tinnitus was final. 3. The evidence received since the May 2014 Board decision is not cumulative or redundant, and raises and reasonable possibility of substantiating the claims previously denied. CONCLUSION OF LAW 1. New and material evidence has been received to reopen the claim for service connection for bilateral hearing loss. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). 2. New and material evidence has been received to reopen the claim for service connection for tinnitus. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably service on active duty in the United States Army from November 1967 to November 1971. The Board has reframed the issue of service connection for bilateral hearing loss and tinnitus as whether new and material evidence has been received to reopen a claim for entitlement to service connection for the above issues. He was previously denied service connection for bilateral hearing loss and tinnitus by the Board in May 2014. The final Board decision denied service connection on a direct and presumptive basis, and found that there was no evidence of continuity of symptomatology. The Veteran submitted a new claim for bilateral hearing loss and tinnitus in February 2015. The current appeal is from a March 2015 rating decision of the St. Louis Regional Office (RO). The statutory scheme in 38 U.S.C. §§ 5108, 7104 establishes a legal duty for the Board to consider the issue of reopening service connection based on new and material evidence regardless of the RO’s determination as to that issue. The Veteran seeks to reopen his claim of service connection for bilateral hearing loss and tinnitus, which he contends originated in service. The question is whether there is new and material evidence to reopen the claim. The Veteran states that he was attached to a tank battalion and served in Vietnam. He further stated that all duties that he performed exposed to him to a wide variety of traumatic noise from armored, track, and diesel vehicles. Since the resolution of these claims involves the application of identical law to similar facts, in the interest of judicial economy, these issues will be addressed together. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). As previously stated, the Veteran was denied service connection for hearing loss and tinnitus by the Board in May 2014. The evidence obtained since the Board decision includes an audio examination provided by the Veteran in February 2015. The examiner stated that the Veteran’s hearing loss and tinnitus is at least as likely as not (50 percent probability or greater) caused by or a result of an event in military service. As there is now a medical opinion relating the Veteran’s hearing loss and tinnitus to service and there was no such medical opinion at the time of the May 2014 final Board decision, the Board finds that new and material evidence has been submitted to reopen the Veteran’s claims. REMANDED The claims for service connection for bilateral hearing loss and tinnitus are remanded. REASONS FOR REMAND The Board finds that a remand is required to accord the Veteran a competent medical examination and opinion to clarify the nature and etiology of his claimed bilateral hearing loss and tinnitus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran indicated on his VA Form 21-526EZ, Application for Compensation, received in February 2015, that he received treatment from the St. Louis VAMC from January 1999 to the present. The RO did not request these records prior to making their decision in March 2015. The matters are REMANDED for the following action: 1. Obtain any records of VA treatment records dated from January 1999 to present. All reasonable attempts should be made to obtain any identified records. 2. Once the VA treatment records have been obtained, the RO should arrange for a VA examination with medical opinion. The electronic claims file should be made available to and be reviewed by the examiner. All appropriate testing should be conducted. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s hearing loss and tinnitus (a) had an onset in service; (b) manifested to a compensable degree within a year of separation from service; or (c) otherwise are related to service, to include the Veteran’s in-service hazardous noise exposure as textile repair. In so opining, the opinion provider should consider all medical and lay evidence of records, to include statements by the Veteran. The examiner is also reminded that the lack of evidence demonstrating a complaint, treatment or diagnosis of hearing loss in service, while probative, may not serve as the sole basis for a negative nexus opinion. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel