Citation Nr: 20032276 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 16-02 827 DATE: May 7, 2020 ORDER The claim for service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The claim for service connection for bilateral hearing loss was previously denied in a December 2013 decision of the Board of Veterans’ Appeals. 2. Since the December 2013 Board decision was issued, new evidence has been received that favorably relates to an unestablished fact necessary to substantiate the claim for hearing loss. CONCLUSIONS OF LAW 1. The December 2013 Board decision is final. 38 U.S.C. §§ 511, 7103, 7104; 38 C.F.R. § 20.1100. 2. The criteria for reopening the claim for bilateral hearing loss have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in November 2018; a transcript of the hearing is of record. Petition to Reopen Claim The Board previously denied the claim service connection for bilateral hearing loss in a December 2013 decision. That decision is final. See 38 U.S.C. §§ 511(a), 7103, 7104(a); 38 C.F.R. § 20.1100 (providing that, with certain exceptions not applicable here, all Board decisions are final on the date stamped on the face of the decision). To reopen a previously and finally disallowed claim under VA’s legacy appeal system, which applies in this case, new and material evidence must be submitted by the claimant or secured by VA with respect to that claim since the last final denial, regardless of the basis for that denial. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). “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 denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed, unless it is inherently false or untrue. Duran v. Brown, 7 Vet. App. 216, 220 (1994). The December 2013 Board decision denied service connection for bilateral hearing loss because it found that the preponderance of the evidence weighed against a link between the Veteran’s hearing loss disability and his period of service, including in-service noise exposure. Since that decision, the Veteran testified at the November 2018 Board hearing that he was issued hearing aids in the early 1970’s. That testimony is new to the record and is not redundant of the evidence of record at the time of the December 2013 Board decision. For the purpose of determining whether it constitutes new and material evidence, its credibility is presumed. See id. As evidence of hearing loss as early as the 1970’s supports a possible link to in-service noise exposure, the Veteran’s testimony relates to an unestablished fact necessary to substantiate the claim. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). It also raises a reasonable possibility of substantiating the claim, as the evidence already shows a current bilateral hearing loss disability and in-service noise exposure. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Veteran’s testimony constitutes new and material evidence. See 38 C.F.R. § 3.156(a). New and material evidence having been submitted, the claim for hearing loss is reopened. REASONS FOR REMAND At the November 2018 hearing, the Veteran stated that he receives treatment at a VA facility for his hearing loss. There are no VA treatment records in the file. On remand, the Veteran’s VA treatment records must be associated with the file. Further, a January 2014 letter by a private treating audiologist states that he has treated the Veteran since June 2011. On remand, appropriate efforts should be made to obtain these treatment records, in accordance with the Board’s remand instructions. The Board notes that in the January 2014 letter, the private audiologist stated that the Veteran’s hearing loss is at least as likely as not the result of in-service acoustic trauma from noise exposure. However, no explanation is provided in support of that conclusion. Accordingly, the Board cannot rely on this opinion to make an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”) The matters are REMANDED for the following action: 1. Add the Veteran’s VA treatment records to the claims file. (Continued on next page)   2. Request the Veteran to authorize the release of his treatment records from Dr. S. Boikov at George Iwanow Hearing Aid Centers, Inc. Appropriate efforts should be made to obtain these records if he properly fills out and returns the authorized release form. He should also be invited to submit these records himself. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.