Citation Nr: 21023142 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-43 504 DATE: April 20, 2021 ORDER New and material evidence has been submitted to reopen the previously denied claim of service connection bilateral hearing loss, and the claim is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has submitted new and material evidence sufficient to reopen a previously denied claim of service connection for bilateral hearing loss. CONCLUSION OF LAW New and material evidence has been received to reopen the previously denied and final claim of service connection for bilateral hearing loss. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from September 1956 to March 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in March 2021. A transcript of that hearing is of record. New and Material Evidence If a claim was previously denied by a RO or Board decision, and that RO or Board decision became final, then the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 (West 2014); see Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); 38 C.F.R. § 3.156 (2016). Even if the RO (in a rating decision, statement of the case, or supplemental statement of the case) has already determined that new and material evidence has been submitted, in the appeal, a new and material evidence analysis must still be completed by the Board. The requirement for the submission of new and material evidence is a jurisdictional prerequisite in order for a claimant to obtain review of a previously denied and final decision. 38 U.S.C. §§ 5108, 7104(b) (West 2014). The Board is under the statutory obligation to conduct a de novo review of the new and material evidence issue. Butler v. Brown, 4 Vet. App. 167, 171 (1996). Under 38 C.F.R. § 3.104 (a), a decision of the rating agency shall be final and binding as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. An unappealed decision by the RO is final one year from the date notification of the determination is mailed to the claimant. 38 C.F.R. §§ 20.302, 20.1103 (2016). In general terms, "new" evidence is evidence that was not of record at the time that the prior final RO or Board decision was issued. "Material" evidence is evidence that addresses the element(s) of service connection that were deficient (and therefore the basis of denial) in the prior final RO or Board decision. See 38 C.F.R. § 3.156 (a) (2016). The United States Court of Appeals for the Federal Circuit (Federal Court) has indicated that evidence may be considered new and material if it contributes, "to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it will not eventually convince the Board to alter its rating decision." Hodge v. West, 115 F. 3d. 1356, 1363 (Fed. Cir. 1998). 1. Whether new and material evidence has been submitted to reopen the previously denied claim of service connection for bilateral hearing loss The Veteran was initially denied service connection for bilateral hearing loss in an October 2016 rating decision. He did not explicitly appeal that decision and it became final. He now seeks to reopen that claim. In support of his claim, the Veteran testified before the undersigned Veterans Law Judge regarding the incidents of acoustic trauma in service. This evidence is new in that it was not of record at the time of the prior denial. It is material in that it gives a more complete picture of the circumstances surrounding the origin of the Veteran's claimed disability. As such, the Board finds that the claim should be reopened. To this limited extent, the appeal is granted. REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts that his current bilateral hearing loss is related to acoustic trauma he experienced in service. Inasmuch as it regrets further delay, the Board finds that a remand is necessary. The Board cannot make a fully informed decision on the claim because no VA examiner has opined whether the Veteran’s hearing loss is related to his left ear tympanic membrane perforation in service. Although the Veteran’s service treatment records do not contain evidence of treatment for this condition, the August 1956 entrance examination finds normal ear drums, while his March 1960 separation examination notes scarring of his left tympanic membrane. Upon remand, an examiner should discuss whether his current bilateral hearing loss is at least as likely as not related to his in-service perforation of the left tympanic membrane. In the Veteran’s March 2021 hearing, he testified that he noticed a decline in his hearing following his hospitalization for pneumonia during service. His representative raised the theory that his current bilateral hearing loss is related to his in-service pneumonia. On remand, an examiner should discuss whether his current bilateral hearing loss is at least as likely as not related to his in-service pneumonia. The matters are REMANDED for the following action: 1. The RO should invite the Veteran to submit any additional evidence to support his claim for bilateral hearing loss. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s bilateral hearing loss is at least as likely as not related to his in-service perforation of his left tympanic membrane. The examiner should also discuss whether the Veteran’s bilateral hearing loss is at least as likely as not related to his pneumonia in service. The addendum opinion should be accompanied by adequate reasons and bases. If the examiner cannot provide the requested opinion without resorting to mere speculation, they should provide a complete explanation stating why this is so. 3. The RO should undertake any other development deemed necessary in order to readjudicate the Veteran’s bilateral hearing loss claim. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. McDonald