Citation Nr: 22018402 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-24 968 DATE: March 29, 2022 ORDER With new and material evidence having been presented, the claim for entitlement to service connection for bilateral hearing loss is reopened. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. In a July 2015 rating decision, the RO denied service connection for bilateral hearing loss. An appeal was not perfected and that decision and it became final. 2. Evidence added to the record since the July 2015 rating decision is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of service connection for bilateral hearing loss. CONCLUSION OF LAW New and material evidence has been received since the July 2015 rating decision denying entitlement to service connection for bilateral hearing loss; the criteria for reopening this claim have been met. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from January 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before the undersigned Veterans Law Judge in February 2022. A transcript of the hearing is of record. 1. With new and material evidence having been presented, the claim for entitlement to service connection for bilateral hearing loss is reopened The Veteran is seeking to reopen his claim for entitlement to service connection for bilateral hearing loss. VA may reopen a claim for service connection which has been previously and finally disallowed when new and material evidence has been presented or secured since the last final disallowance of the claim. 38 U.S.C. § 5108; Evans v. Brown, 9 Vet. App. 273, 285 (1996). In this regard, "new evidence" means existing evidence not previously submitted to VA. "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Taken in combination, new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). New evidence may be sufficient to reopen a claim if it can contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998); Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). Thus, the Board must first determine whether new and material evidence has been submitted under 38 C.F.R. § 3.156 (a) to have a claim reopened under 38 U.S.C. § 5108. Elkins v. West, 12 Vet. App. 209 (1999). Then the Board may proceed to evaluate the merits of the claim after ensuring that VA's duty to assist has been fulfilled. See Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999). The law should be interpreted to enable reopening of a claim, rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010). To determine whether new and material evidence has been submitted, it is necessary to consider all evidence added to the record since the last time the claim was denied on any basis in conjunction with the evidence already of record. The RO initially denied the Veteran's claim for service connection for bilateral hearing loss in July 2015 on the basis that the Veteran's bilateral hearing loss was not related to service. This denial of service connection became final, as the Veteran did not perfect an appeal of the RO's rating decision, nor was any new and material evidence received within a year. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. The Veteran sought to reopen his claim for service connection in July 2017 by submitting new evidence. The November 2017 rating decision denied the reopening of the Veteran's claim because the RO determined that the evidence submitted was not new and material. The Veteran perfected an appeal. The Board finds that the new evidence does raise a reasonable possibility of substantiating the Veteran's claim. Again, the July 2015 rating decision denied the Veteran's claim on the basis that the Veteran's hearing loss is not related to his military service. The new evidence not only establishes that the Veteran has a diagnosis of bilateral hearing loss, it also establishes the reasonable possibility that the Veteran's disability could be related to his active duty service. This evidence raises a reasonable possibility of substantiating the Veteran's claim. Therefore, the Board finds that new and material evidence is of record since the prior final denial of this claim in July 2015. Shade, 24 Vet. App. at 117. The claim of entitlement to service connection for bilateral hearing loss is thus reopened. REASONS FOR REMAND 1. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran asserts he is entitled to service connection for bilateral hearing loss. The Veteran appeared for VA examinations in December 2014 and September 2018 for his bilateral hearing loss. In both instances, the VA examiner opined that the Veteran's bilateral hearing loss was less likely than not related to his military service. The Board finds that both VA medical opinions are inadequate. In this regard, neither VA examiner provided adequate medical reasons and bases for the stated opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Consequently, a remand is required to obtain a new VA opinion. The matters are REMANDED for the following action: Obtain an opinion as to whether the Veteran's current bilateral hearing loss is related to his active service. The Veteran should only be scheduled for an examination if deemed necessary by the reviewing examiner. After reviewing the Veteran's claims file, the examiner is to state whether it is at least as likely as not that the Veteran's current bilateral hearing loss is related to his active service. In answering this question, the examiner must address the Veteran's statements regarding his in-service noise exposure. A negative rationale may not be based solely on the fact that the Veteran's hearing was not a disability for VA purposes at the time of his separation. Provide a rationale to support the opinion(s). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. K. Hall, 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.