Citation Nr: 21022987 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-15 709A DATE: April 19, 2021 REMANDED Whether new and material evidence has been received to reopen the claim for entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for right ear hearing loss is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from November 1971 to August 1973. This matter is on appeal from a July 2014 rating decision. The Veteran was afforded an October 2018 hearing before a Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. The Board remanded this appeal in May 2019 for additional development. In the same decision, the Board denied reopening the claim for entitlement to service connection for left ear hearing loss. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in August 2020, vacated and remanded the issue back to the Board. The Board notes that during the pendency of the appeal, a January 2021 VA letter informed the Veteran and representative that the Veterans Law Judge who held the October 2018 hearing was no longer employed with the Board. The letter noted that a complete transcript of the hearing was available and therefore a decision could be made on the appellate record as is; the Veteran was afforded another opportunity for another hearing but in February 2021 the Veteran responded that he did not want another hearing. The Board finds that remand is warranted for additional development. In the May 2019 Board decision, the Board found the Veteran’s left ear hearing loss was preexisting and the Veteran did not submit evidence that was new and material to reopen his claim. In the August 2020 Court decision, the Court found the VLJ at the October 2018 hearing did not mention or discuss with the Veteran that he would need to submit evidence to indicate the Veteran’s preexisting left ear hearing loss was aggravated by service nor did the Veteran’s testimony indicate that he understood the relevant issue. Therefore, the Court found the Veteran was prejudiced by the VLJ’s omission because he did not have the opportunity to submit new and material evidence to demonstrate aggravation of his preexisting left ear hearing loss. As such, the Court vacated and remanded the issue to provide the Veteran an opportunity to submit evidence and to consider whether the Veteran’s testimony was to be considered new and material evidence. The Board notes that the most recent Supplemental Statement of the Case (SSOC) was issued in June 2020 to address the Veteran’s appeal issue for service connection for right ear hearing loss. Review of the record shows in September 2020, the Veteran submitted a private audiological examination regarding the Veteran’s nature and etiology of the Veteran’s appealed issues. The Board may not consider additional evidence not previously reviewed by the AOJ, unless a waiver of initial AOJ review is obtained from the Veteran. See 38 C.F.R. § 20.1304 (c). In a January 2021 informal hearing presentation (IHP) submitted by the Veteran’s representative, the representative noted the submitted September 2020 private examination had not been reviewed by the Regional Office (RO) and stated that the RO should have that opportunity. As such, the representative declined to waive RO jurisdiction and requested a remand. As such, the claim is be remanded for initial consideration by the AOJ and issuance of an updated SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. The matters are REMANDED for the following action: 1. The AOJ should readjudicate the Veteran’s claims for whether new and material evidence has been received to reopen entitlement to service connection for left ear hearing loss; and entitlement to service connection for right ear hearing loss. 2. If any determination is less than fully favorable, the Veteran and his representative must be furnished with an SSOC and given an opportunity to respond before the case is returned to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.