Citation Nr: 21022705 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-17 114 DATE: April 19, 2021 ORDER The petition to reopen the previously denied the claim for service connection for a perforated eardrum is granted. REMANDED Entitlement to service connection for a perforated eardrum is remanded. FINDING OF FACT A June 2014 rating decision denied service connection for a perforated eardrum disorder on the basis that the evidence did not show a perforated eardrum disability and became final; evidence received since the prior final disallowance is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. CONCLUSION OF LAW The June 2014 rating decision denying the claim for service connection for a perforated eardrum disability is final; and new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from February 1968 to November 1970 and from April 1981 to January 1987. This appeal comes before the Board of Veterans’ Appeals (Board) from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Board denied the claim. Thereafter, the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a Joint Motion for Partial Remand (JMPR. The JMPR stating, among other things, that the Board had not considered an April 2014 lay statement from the Veteran, where he reported he was told by a VA physician that his right ear had visible scarring and scar tissue. Whether new and material evidence has been received to reopen the previously denied claim for service connection for a perforated eardrum. The Board concludes that the June 2014 rating decision denying the claim for service connection for a perforated eardrum is final; and that new and material evidence has been received to reopen the claim. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. Generally, decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38C.F.R. §3.156; Barnett v. Brown, 8 Vet. App. 1(1995) (citing 38U.S.C. §§5108, 7104(b)). 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. See also 38 C.F.R. § 3.156(a). Regardless of whether the RO found that new and material evidence had been submitted to reopen a claim for service connection, it is well established that the Board must determine on its own whether new and material evidence has been submitted to reopen a claim. See Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). A March 2008 rating decision denied the Veteran’s claim of entitlement to service connection for a perforated eardrum. The claim was denied because the evidence of record did not show the Veteran had a current a perforated eardrum disability. VA notified the Veteran of this decision in a March 2008 letter and how to appeal. The Veteran filed a timely notice of disagreement (NOD) to appeal the March 2008 denial of service connection for the perforated eardrum, and a Statement of the Case (SOC) was issued by the RO in April 2009. VA received a June 2009 Form 9 from the Veteran limiting his appeal to the lumbar and cervical spine disorders; a perforated eardrum disorder was not appealed in the June 2009 Form 9. Therefore, the March 2008 rating decision became final. 38 U.S.C. § 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. In April 2014, VA received the Veteran’s petition to reopen the previously denied claim for right ear perforated eardrum. A June 2014 rating decision denied the request. The Veteran was notified of that decision in a June 2014 letter. VA received no response to this letter, to include an appeal or new and material evidence prior to expiration of the appeal period. As such, the April 2014 rating decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.1103. Evidence associated with the claims file following the prior final disallowance includes new and material evidence. Specifically, a January 2021 private audiometry and associated letter, received by VA in February 2021, reflects the Veteran’s right ear tympanic membrane was noted to have a cloudy appearance in the inferior-posterior portion. The unnamed provider opined it was as likely as not scar tissue from tympanic membrane rupture in 1969. The letter also reflects the Veteran had mild to severe sloping sensorineural hearing loss with slightly worse hearing in the right ear than in the left ear. The letter was not signed by a specific provider, but listed Greenbrier Audiology, Inc. as the provider and the Veteran submitted a cover letter stating he was examined by an audiologist, Dr. K.S., who prepared the report. This evidence was not previously considered by decision-makers and tends to support the Veteran’s theory of entitlement. The Board notes that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Evidence submitted since the last prior final disallowance addresses a prior evidentiary defect. Accordingly, the petition to reopen the claim is granted. REASONS FOR REMAND Entitlement to service connection for a perforated eardrum is remanded. For the following reasons, the Board finds that remand is necessary. The Board finds the January 2021 private medical opinion is inadequate because it does not directly answer the question of whether the Veteran’s has a current right ear disease or disability. Specifically, whether the right ear cloudy tympanic membrane constitutes a disability in addition to his hearing loss disability, of which is already service-connected. The Board finds remand is necessary for a new VA examination and medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from March 2021 to the Present. 2. Schedule the Veteran for a VA examination for his right ear and claimed right ear perforated ear drum. The examiner must review the claims file. Address the following: (a) Identify all abnormal pathology of the right and left ear, to include any disease processes; (b) indicate whether any disease process of the right or left ear is at least as likely as not due to auditory injury reported by the Veteran (to include right ruptured eardrum in 1969); and (c) indicate whether any disease process of the right or left ear is at least as likely as not either (i) due to or (ii) aggravated by service-connected hearing loss disability. Note: To the extent that there are findings for right ear cloudy tympanic membrane, identify all functional impairment due to this clinical finding. The examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Pendleton, N. 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.