Citation Nr: 21007382 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-32 855 DATE: February 9, 2021 ORDER Entitlement to reopen the claim to service connection for ear infections is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right elbow disability is remanded. FINDINGS OF FACT Evidence added to the record since the previous final denial does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for an ear infection disability. CONCLUSIONS OF LAW New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for an ear infection disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1996 to January 2000. The Veteran had a hearing before the undersigned Veterans Law Judge in December 2019. A transcript has been associated with the file. These matters were previously before the Board and were remanded in February 2020 for further development. This development has been completed and the matters are again before the Board. Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. 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. 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). The Veteran was denied service connection for an ear infection disability in a December 2015 rating decision because there was no evidence of an in-service ear infection condition. The Veteran was denied reopening of his claim in a September 2016 rating decision because no new and material evidence had been received. Relevant evidence of record prior to the previous final denial included examinations, the Veteran’s contentions, service treatment records (STRs), military personnel records, and treatment records. Relevant evidence of record since the previous final denial includes treatment records, statements by the Veteran, and a hearing transcript. In his December 2019 hearing, the Veteran stated when he was at 29 Palms, there were a few times when the corpsman had to clean out his ears because they were filled with dirt and he had chronic ear infections one to two times per year. The Veteran said he still got them. While the added evidence is new in that it was not part of the record at the time of the previous final denial and the Veteran offered more detailed statements about his ear infections in service, it is not material in that this evidence does not raise a reasonable possibility of substantiating the claim because it does not show the Veteran was treated for an ear infection condition while in service. The Veteran’s STRs, which were previously considered, did not make mention of treatment for his ear infections, and the Veteran himself did not note any ongoing problems with ear infections on his separation examination. Therefore, the claim will not be reopened. REASONS FOR REMAND The Board regrets the delay but finds another remand is necessary in the Veteran’s claims to service connection for right elbow, left knee, and left ankle disabilities. The Veteran has not been afforded examinations for his above-claimed conditions. The Veteran’s treatment record shows he has been diagnosed with a left knee disability (see e.g. July 2016 treatment record) and a right elbow disability (see e.g. February 2016 treatment record.) The Veteran’s record also indicates the Veteran has been seen and treated for left ankle pain. However, it is unclear from the record whether the Veteran has a diagnosed left ankle disability. While the Veteran’s STRs do not indicate the Veteran suffered from any ongoing right elbow, left knee, or left ankle disabilities while in service, the Veteran has said he was put on light duty due to his lower extremity disabilities. The Veteran also contends his disabilities are due to the anthrax vaccines he received while in service. (See December 2019 hearing transcript.) Therefore, the claims will be remanded. The matters are REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding VA and private medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. Schedule the Veteran for an appropriate examination for his right elbow, left knee, and left ankle disabilities. For each claimed disability, the examiner should opine as to the following: (a) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s disability was incurred during the Veteran’s service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s disability is proximately due to any of his service connected disabilities. (c) Whether it is at least as likely as not (a 50 percent or greater probability) the Veteran’s disability was aggravated beyond its natural progression by any of his service connected disabilities. The examiner should offer a rationale for any opinion offered. For any condition for which a disability is not diagnosed, the examiner should discuss the Veteran’s pain and its functional impact and its economic impact on the Veteran. 3. After the requested development has been completed, together with any additional development as may become necessary, readjudicate the Veteran’s claims. If the benefit sought on appeal remains denied, issue to the Veteran and the Veteran’s representative a supplemental statement of the case and give an opportunity to respond thereto. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Snoparsky 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.