Citation Nr: 18152529 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-46 421 DATE: November 23, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim for service connection for left ear hearing loss has been received, the application to reopen is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. FINDINGS OF FACT 1. In a rating decision dated in April 2007, the Regional Office (RO) denied the Veteran’s claim for service connection for left ear hearing loss on the basis that the evidence failed to show that the Veteran had a nexus relating his current left ear hearing loss to service. In June 2008, the Veteran appealed the decision to the Board, which denied the claim in November 2008. The Veteran did not appeal the decision to the United States Court of Appeals for Veterans Claims (Court) and the decision became final. 2. Evidence received since the November 2008 Board decision is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claim of entitlement to service connection for left ear hearing loss. CONCLUSIONS OF LAW 1. The November 2008 Board decision denying service connection for left ear hearing loss is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for left ear hearing loss has been submitted; the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from January 1967 to February 1970. New and Material Evidence Where service connection for a disability has been denied in a final decision, a subsequent claim for service connection for that disability may be considered on the merits only if new and material evidence has been received since the time of the prior adjudication. New evidence means 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. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).   1. New and material evidence sufficient to reopen the claim for left ear hearing loss The Veteran’s claim for service connection for left ear hearing loss was denied in an April 2007 rating decision. In June 2008, the Veteran appealed the decision to the Board, which denied the claim in November 2008. The Board determined that there was no evidence of a nexus relating the current left ear hearing loss to service as required to establish service connection under 38 C.F.R. § 3.303. The Veteran did not appeal this decision or submit new evidence within one year of the denial. The November 2008 Board decision thereby became final. In September 2014, the RO granted reopening of the Veteran’s claim for service connection for left ear hearing loss on the basis that there was new and material evidence submitted. The Board finds that the claim for entitlement to service connection for left ear hearing loss was properly reopened by the RO. The Veteran has submitted evidence of a VA hearing loss examination as well as service personnel records documenting the event which he claimed caused his left ear hearing loss. This evidence satisfies the low threshold requirement for new and material evidence and these claim is reopened. See Shade v. Shinseki, 24 Vet. App. 110 (2010). REASONS FOR REMAND Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claim. 1. Entitlement to service connection for left ear hearing loss is remanded The Veteran alleges his left ear hearing loss is associated with acoustic trauma following exposure to a hostile explosion on July 29, 1968. Service records note that on that date, the Veteran was hit by an “enemy explosive device.” July 29, 1968 Service Treatment Record. The Board concedes the Veteran’s exposure to hazardous noise during that incident. In addition, the Veteran is service connected for right-ear hearing loss and tinnitus as a result of the in-service incident. The Veteran was afforded a VA examination in June 2016. The examiner found the Veteran had a current diagnosis of left ear hearing loss, but that it was not etiologically related to any in-service hearing loss of the left ear. However, the examiner did not consider the September 1968 audiogram following the July 1968 conceded acoustic trauma, which appears to document right ear hearing loss at and above 3000 Hz, and some degree of left ear hearing loss above 4000 Hz. Accordingly, an additional examination is required to fully consider the available service treatment records and provide a nexus opinion. The matter is REMANDED for the following action: 1. Schedule the Veteran for examination pertaining to the claimed left ear hearing loss. The entire claims file must be made available to the designated examiner, including this remand. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should identify whether the Veteran has a left ear hearing loss disability for VA purposes. Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that a left ear hearing loss disability was incurred in service or are otherwise medically related to service, to include noise exposure therein. The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account. In addition, the examiner is advised that in-service noise exposure is conceded. In rendering the requested opinion, it should be noted that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laura A. Crawford, Associate Counsel