Citation Nr: 18108398
Decision Date: 06/05/18	Archive Date: 06/05/18

DOCKET NO. 15-01 963
DATE:	June 5, 2018
ORDER
The request to reopen a claim for service connection for bilateral hearing loss is granted.
REMANDED
Service connection for bilateral hearing loss is remanded.
FINDING OF FACT
The Veteran did not appeal a January 2002 rating decision which denied service connection for a skin rash, but new and material evidence has been received which raises a reasonable possibility of substantiating the claim.
CONCLUSION OF LAW
The criteria to reopen a previously denied claim for service connection for bilateral hearing loss have been met.  38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the U.S. Army from December 1967 to December 1970, and had additional service in the U.S. Army Reserves.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision.
1. Request to reopen a claim for service connection for bilateral hearing loss
Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c).  An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed.  38 U.S.C. § 5108.
The Veteran was previously denied service connection for bilateral hearing loss in an August 2009 rating decision.  The basis of that denial was that a current hearing loss disability was not shown.  He did not appeal that decision and it became final.
Since the August 2009 rating decision, VA obtained a January 2013 examination which documents bilateral hearing loss under the criteria found in 38 C.F.R. § 3.385.  This evidence is new as it was not part of the record at the time of the prior denial, and it is material because it relates to the previously unestablished element of whether the Veteran has a current hearing loss disability.  Because new and material evidence has been received, the claim is reopened.
REASONS FOR REMAND
The Board cannot make a fully-informed decision on the issue of service connection for bilateral hearing loss because the January 2013 VA examiner did not provide an adequate rationale for her conclusion that current hearing loss was not related to service.  She stated that hearing loss was not related to service because the Veteran’s hearing levels were normal during his September 1970 separation examination.
The provisions of 38 C.F.R. § 3.385, which address hearing loss, do not preclude service connection when hearing was within normal limits on audiometric testing at separation from service.  Hensley v. Brown, 5 Vet. App. 155 (1993).  Therefore, a supplemental VA opinion is required.
The matter is REMANDED for the following action:
1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to noise exposure from service.
The examiner is notified that the Veteran had active service with an enlistment examination in December 1967 and a separation examination in September 1970.  He had reserve service with examinations in January 1977, March 1982, November 1987, July 1990, and July 2001.  The examiner should review and comment on these examinations reports as needed to support the requested opinion.
The examiner should further note that normal hearing levels at separation, without further explanation, is not a 
 
sufficient basis to conclude that current hearing loss is not related to active service.

 
M. TENNER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shamil Patel, Counsel