Citation Nr: A21020669 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 200501-81160 DATE: December 30, 2021 ORDER New and relevant evidence has been submitted to reopen the claim of entitlement to service connection for bilateral hearing loss. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT New evidence was received after the July 2019 denial that is relevant to the issue of entitlement to service connection for bilateral hearing loss. CONCLUSION OF LAW The criteria for readjudicating the claim of entitlement to service connection for bilateral hearing loss are met. 38 C.F.R. §§ 3.156, 3.2501 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1972 to December 1973. In March 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of his claim for service connection for bilateral hearing loss most recently addressed in a July 2019 rating decision. In April 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had not been received. Therefore, the Board must determine whether new and relevant evidence has been received based only on the evidence of record at the time of the decision on appeal. The Board notes that, in March 2021 the Veteran perfected an appeal to the Board by requesting the AMA Hearing lane for the claims of entitlement to service connection for tinnitus, entitlement to service connection for joint pains and constant swelling of the right hip, and an increased rating claim for moderate to severe osteoarthritis of the left ankle. As these issues are in a different appeal stream and a Board hearing has been requested, these claims will be adjudicated in a different Board decision. New and Relevant Evidence The Veteran filed a claim for bilateral hearing loss in May 2019 and a rating decision was issued in July 2019 denying the claim as there was no aggravation nor continuity of symptomatology of bilateral hearing loss manifested to a compensable degree within a year of service. The Veteran filed a Supplemental Claim in March 2020. The rating decision on appeal adjudicated that claim and determined that new and relevant evidence had not been submitted. See April 2020 Rating Decision. A claim will be readjudicated if new and relevant evidenced is presented or secured. 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter at issue. 38 C.F.R. § 3.2501(a)(1). In January 2020 a positive nexus opinion for tinnitus was obtained by VA in which the private examiner related the hazardous noise the Veteran experienced in service and the hearing consequences thereof. This evidence is new, and as it relates to whether hearing loss worsened in service, it is relevant. In this regard, the threshold of proof to reopen a claim is low, the Veteran is competent to report military noise exposure, and the credibility of new evidence is presumed in making a reopening determination. See Shade v. Shinseki, 24 Vet. App. 110, 117, 122 (2010) (discussing application of new and material evidence standard); see also § 3.2501(a) (explaining that "the new and relevant standard will not impose a higher evidentiary threshold than the previous new and material evidence standard"). The Board emphasizes that the RO's determination that the new evidence secured is not relevant because it "does not prove or disprove a matter at issue" is incorrect. Evidence that has a tendency to prove a matter is relevant, and the RO improperly raised the relevance standard by requiring an outcome-based decision at the threshold stage of the claim. See Shade, 24 Vet. App. at 121. Accordingly, as new and relevant evidence has been secured, readjudication of the claim of entitlement to service connection for bilateral hearing loss is warranted. REASONS FOR REMAND The Veteran asserts that his bilateral hearing loss was caused or aggravated by his in-service noise exposure. As discussed above, the claim warrants readjudication based on receipt of new and relevant evidence. Because the AOJ did not find that new and relevant evidence was received, the AOJ has not yet adjudicated the claim on the merits. Thus, a remand for initial adjudication on the merits is necessary, as the Board is prevented from doing so in the first instance. Indeed, the Veteran has a procedural right to have one review of his appeal by the Secretary under 38 U.S.C. § 7104(a), and AMA amendments do not specifically revoke that right. The matters are REMANDED for the following action: As the Board has found that new and relevant evidence has been received in support of the Veteran's previously-denied service connection claim for bilateral hearing loss, readjudicate the appeal on the merits. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, Associate 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.