Citation Nr: 20034559 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 17-50 315A DATE: May 18, 2020 ORDER The claim for entitlement to service connection for a spine condition is reopened. The claim for entitlement to service connection for a right knee condition is reopened. The claim for entitlement to service connection for a left knee condition is reopened. REMANDED Entitlement to service connection for a spine condition is remanded. Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDINGS OF FACT 1. The Veteran’s claims for entitlement to service connection for spine and bilateral knee conditions were originally denied in a rating decision of January 2005. 2. The denial of service connection for these conditions was confirmed and continued in a rating decision of March 2016. 3. The evidence received since the January 2005 rating decision is not cumulative and redundant of the other evidence of record and raises a reasonable possibility of substantiating the Veteran’s claims. CONCLUSION OF LAW New and material evidence has been received to reopen the issues of service connection for the Veteran’s spine and bilateral knee conditions. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to November 2003. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of March 2016 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Following the rating decision on appeal, the Veteran timely submitted her notice of disagreement (NOD) in July 2016. The RO issued a statement of the case (SOC) in August 2017 and the Veteran’s timely appeal to the Board followed in October 2017. Because the Veteran did not request a hearing in her appeal, no hearing before the undersigned VLJ was scheduled. The record reflects that the Veteran died in June 2018. The Appellant, the Veteran’s surviving spouse, timely filed for substitution in the Veteran’s claims. See August 2018 Notification Letter. Following the Appellant’s substitution, the Board remanded this case in April 2019 to obtain additional federal and private medical records. See April 2019 Board Decision at 5-6. The Board again extends its condolences to the Appellant as to the Veteran’s death. However, the Board finds that an additional remand is necessary to ensure substantial compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. The claims for entitlement to service connection for spine and bilateral knee conditions are reopened. The RO previously found that the Veteran had submitted new and material evidence regarding these claims in the rating decision on appeal. See March 2016 Rating Decision at 2-4. However, under the legacy system of regulations, the Board must review the RO’s findings de novo. See 38 C.F.R. § 3.104 (2018); cf. 38 C.F.R. § 3.104. Generally, “[if] new and material evidence is presented or secured with respect to a claim which has been disallowed, [VA] shall reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 5108 (2018). “New evidence is evidence not previously part of the actual record… [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.” 38 C.F.R. § 3.156(a). 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.” Id. However, new and material evidence can be sufficient to reopen a claim if it can satisfy at least one previously unproven element thereof. See Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (holding that regulations do not require evidence “as to each previously unproven element of a claim”) (emphasis added). The elements of service connection are the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). The Veteran submitted additional medical records and underwent a VA examination addressing these claims in March 2016. Additionally, the Veteran identified further medical records and treatment dates in correspondence of October 2017 and March 2018. The Board therefore finds that additional evidence was submitted in support of each of the three Shedden factors and that the Veteran had presented new and material evidence sufficient to reopen her claims for service connection for spine and bilateral knee conditions. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS FOR REMAND 1. Entitlement to service connection for spine and bilateral knee conditions. In her VA examination of March 2016, the Veteran had asserted that she received treatment for these conditions through TRICARE, a health care program operated by the United States Department of Defense. See March 2016 VA Examination at 3 (providing that “[the Veteran] got medical care [for her spine condition] through Tri-Care [from] 2003-2008”); see also id. at 11 (providing that “[she was] seen on base (Tri-care) after seperation [sic] for bilateral knee pain [in December 2006]”). The claims file does not reflect the inclusion of these records, and part of the March 2016 VA examiner’s opinion against service connection was based on the absence of corroborating medical treatment during time periods the TRICARE records allegedly cover. See id. at 21-22 (noting that “[medical] treatment records since seperation [sic] from the military are absent for back pain until 2014” and that “treatment records [are] silent for [bilateral] knee condition from 2006 to 2014”). Accordingly, the Board previously directed that the RO obtain the Veteran’s TRICARE records. See April 2019 Board Decision at 5-6. However, the RO did not substantially comply with the Board’s directive. Instead, the RO requested that the Appellant provide these records. See December 2019 Development Letter at 1; see also 38 U.S.C. § 5103A(b) (providing for VA’s “reasonable efforts to obtain relevant private records that the claimant adequately identifies”); see also id. at § 5103A(b)(2)(B) (providing that reasonable efforts shall include “not less than two requests to the custodian of a private record… unless it is made evident by the first request that a second request would be futile”); cf. id. at § 5103A(c)(1)(C) (providing that VA shall obtain “[any] other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes”); see also id. at § 5103A(c)(2) (providing that “whenever [VA] attempts to obtain records from a Federal department or agency under this subsection, the efforts to obtain these records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile”); see also Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (providing that actual notice of relevant federal records triggers VA’s duty to assist the Veteran by attempting to obtain those records); see also 38 C.F.R. § 3.159(c)(2). Neither the December 2019 Development Letter nor the subsequent supplemental statement of the case (SSOC) reflect that the RO requested any records concerning the Veteran from TRICARE directly. See March 2020 SSOC at 3; see also id. at 23. Prior to her death, the Veteran had already provided sufficient information to establish such records’ relevancy and to identify them with adequate specificity. See 38 C.F.R. § 3.159(c)(2)(i) (providing that “enough information to identify and locate the existing records” includes “the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided”). These matters are therefore REMANDED for the following action: 1. Obtain the Veteran’s TRICARE medical treatment records dated from 2003 to the Veteran’s death and associate them with the Veteran’s claims file. Document all efforts made to obtain such records. If such records are unavailable or no longer exist, document all efforts made to establish their unavailability or nonexistence. 2. Provide the Veteran’s claims file, including a copy of this remand, to an appropriate-qualified examiner. The examiner shall review the claims file and provide opinions as to whether it is at least as likely as not that the Veteran’s spine and bilateral knee conditions were due to or aggravated by her active duty service. If the examiner is unable to provide such opinions, the examiner shall clearly explain why more definite conclusions cannot be reached. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.