Citation Nr: 21007249 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-05 998 DATE: February 9, 2021 ORDER The request to reopen the claim of entitlement to service connection for a bilateral hearing loss disability is granted. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. FINDINGS OF FACT 1. In a March 2005 rating decision, the Veteran was denied service connection for a bilateral hearing loss disability on the basis that the evidence did not show his disability was incurred in or caused by service. The Veteran was notified of the decision in correspondence issued in April 2005. He did not appeal the decision and new evidence was not submitted within a year after the decision. Therefore, the decision is final. 2. In his February 2019 substantive appeal, the Veteran reported that he worked near a helicopter training facility for 12 hours a day and was exposed to significant noise. This evidence is relevant and probative, and it helps cure a prior evidentiary defect; namely, the lack of a relation to the Veteran’s service. CONCLUSIONS OF LAW 1. The March 2005 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. § 19.52 (2020). 2. The evidence received since the March 2005 rating decision, which denied service connection for a bilateral hearing loss disability, is new and material, and the claim is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2020). REASONS FOR REMAND The Veteran served on active duty from September 1953 to September 1956 and June 1958 to June 1964. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by the Department of Veterans Affairs (VA). This case was remanded in August 2020 for further development. Although the Agency of Original Jurisdiction (AOJ) reopened the Veteran’s claim of service connection for a hearing loss disability, the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board’s jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the AOJ may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. The Board has added the issue accordingly and regrets its error in August 2020. For the reasons stated above, the request to reopen the claim of entitlement to service connection for a bilateral hearing loss disability has been granted and will not be further discussed. Entitlement to service connection for a bilateral hearing loss disability. The Board’s directives required that the AOJ arrange for a VA medical opinion with an interview of the Veteran to determine the likely cause of his bilateral hearing loss disability. See August 2020 Board remand. The AOJ merely obtained a medical opinion and there was no interview of the Veteran. Indeed, the Board requested that the examiner ask the Veteran when his hearing impairment began, and the examiner merely stated that he could not find lay statements regarding such information. Because the examiner did not interview the Veteran, the Board is unable to determine the adequacy of the November 2020 VA medical opinion at this time. The Board must remand the matter because its directive was not followed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). To ensure that its directive is complied with, the Board will request an examination rather than a medical opinion with interview. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from September 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his hearing loss disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) The examiner should request from the Veteran information regarding when his hearing impairment began. (b.) Is it at least as likely as not (50% or greater probability) that the Veteran’s hearing loss disability was either incurred in or otherwise related to his military service? Please explain why. The examiner may not solely rely on the absence of medical evidence of hearing loss in STRs and must consider the Veteran’s lay statements regarding when his hearing impairment began, when obtained. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.