BVA Case 22-6596: Back

Higgins , through counsel appeals a November 17,2021, Board of Veterans'Appeals (Board)decision denying disability compensation for bilateral hearing loss and determining that new and material evidence had not been presented to reopen a claim for disability compensation for asthma.

For the following reasons,the Court will vacate the Board's decision determining that new and material evidence had not been presented to reopen the asthma claim,remand the vacated matter for further proceedings consistent with this decision,and affirm the Board's decision denying disability compensation for bilateral hearing loss.

His service records reflect treatment for various 1 The appellant,on March 17,2022,sought reconsideration of the November 17,2021,Board decision;the Chairman of the Board denied the motion on July 12,2022; and the appellant filed a Notice of Appeal on November 9, 2022.

The RO,in July 2008, declined to reopen the claim on the grounds that a VA treatment record was not considered new because it did not show any treatment for bronchial asthma and the appellant had not responded to a letter requesting that he submit new and material evidence.

Parties'Arguments The appellant first contends that, in determining that new and material evidence had not been submitted to reopen his claim for disability compensation for asthma,the Board failed to properly consider his 2021 testimony.

He also asserts that the VA medical records from 2009 to 2021 reflecting asthma diagnoses are new and material because the RO previously found that he did not have a current condition,and he asserts that the Board erred in finding that a current diagnosis had previously been established.

He concludes that, [b]ecause the Board failed to properly apply the new and material evidence standards .

, the Board failed to ensure it ordered a [VA] examination and instead relied on its own medical conclusion to determine that there was no nexus to service.