Citation Nr: 21061611 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 14-34 471 DATE: October 4, 2021 ORDER Reopening of the issue of service connection for bilateral hearing loss is granted. REMANDED Entitlement to service connection for a back disability, to include whether new and material evidence has been received to reopen the claim, is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for chronic otitis media is remanded. Entitlement to service connection for conjunctivitis is remanded. Entitlement to service connection for a left thumb disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for dermatitis is remanded. Entitlement to service connection for tina pedia is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for a kidney disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to a compensable rating for nasal pinguecula of the bilateral eyes is remanded. Entitlement to a compensable rating for sinus bradycardia is remanded. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT VA has received previously unconsidered evidence since a final December 2007 rating decision that denied service connection for bilateral hearing loss that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW The criteria for reopening the issue of service connection 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 A December 2007 rating decision denied service connection for bilateral hearing loss on the basis that the Veteran did not have a current disability as defined by 38 C.F.R. § 3.385 at that time. VA did not receive new and material evidence or a notice of disagreement regarding the Veteran's service connection claim for bilateral hearing loss within one year of notice of the December 2007 rating decision; therefore, it is final regarding that issue. In December 2010, the Veteran submitted a private audiological evaluation that suggests the presence of a bilateral hearing loss disability. This evidence, at a minimum, triggers VA's duty to provide an examination regarding the Veteran's service connection claim for bilateral hearing loss; therefore, it is sufficient to reopen the previously denied claim. See Shade v. Shinseki, 24 Vet. App. 110, 118-19 (2010). The Board acknowledges the Agency of Original Jurisdiction (AOJ) considered the Veteran's service connection claim for bilateral hearing loss reopened prior to certification of this appeal to the Board. Yet, a determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the merits of an underlying claim. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). As a result, the Board must address the question of whether new and material evidence has been presented to reopen the claim regardless of any action by the AOJ. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Although the Veteran's appeal is being remanded for due process concerns, as discussed in more detail below, the Board finds the record clearly includes new evidence sufficient to reopen his service connection claim for bilateral hearing loss, as previously found by the AOJ. The remaining issues on appeal, to include, but not limited to, whether new and material evidence has been received to reopen the issue of service connection for a low back disability, will be addressed in the REMAND section below. REASONS FOR REMAND In a January 2021 informal hearing presentation (IHP), the Veteran requested the issues on appeal be remanded for the provision of a Regional Office hearing, as previously requested, or, in the alternative, the Veteran requested rescheduling of a Board hearing because he did not receive notice of a February 2018 video conference hearing due to a change in address, an issue which is well documented in the claims file. Although the Veteran submitted an additional IHP in May 2021, this IHP provides no indication that he has withdrawn his request for a Regional Office hearing or, in the alternative, a rescheduled Board hearing. To ensure the Veteran is afforded due process, the Board finds he should be scheduled for the requested Regional Office hearing prior to the rescheduling of a Board hearing, as this will maximize his opportunity for the development of his claims, especially in light of the minimal development the AOJ completed prior to certification of the appeal to the Board. The Board notes it has added the issue of entitlement to TDIU to the active appeal stream, as the Veteran has explicitly raised the issue of unemployability during the pendency of his appeal of the ratings assigned for nasal pinguecula of the bilateral eyes, sinus bradycardia, and tinnitus. See Rice v. Shinseki, 22 Vet. App. 447 (2009). (Continued on the next page) The matters are REMANDED for the following action: Schedule the Veteran for a Regional Office hearing regarding the issues on appeal and then complete any additional development deemed necessary thereafter. If any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the matter to the Board if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.