Citation Nr: 1515623 Decision Date: 04/10/15 Archive Date: 04/21/15 DOCKET NO. 13-17 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a traumatic brain injury (TBI) with memory problems (claimed as brain damage). 2. Whether new and material evidence has been submitted to reopen a claim of service connection for a low back disability. 3. Whether new and material evidence has been submitted to reopen a claim of service connection for a right shoulder disability. 4. Whether new and material evidence has been submitted to reopen a claim of service connection for a left shoulder disability. 5. Whether new and material evidence has been submitted to reopen a claim of service connection for a right knee disability. 6. Whether new and material evidence has been submitted to reopen a claim of service connection for a left knee disability. REPRESENTATION Appellant represented by: Robert C. Brown, Jr., Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Giannecchini INTRODUCTION The Veteran had active military service from April 1970 to January 1973. These matters come to the Board of Veterans' Appeals (Board) on appeal of a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In September 2013, the Veteran testified before the undersigned Veterans Law Judge during a Board videoconference hearing. Later that same month, the Board received additional private medical evidence from the Veteran's attorney with a waiver of initial RO consideration. The Board accepts the medical evidence for inclusion into the record on appeal. The issues pertaining to bilateral knee and bilateral shoulder disabilities, on the merits, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. The Veteran does not have a TBI with memory problems that is attributable to his period of active service. 2. By an April 2010 rating decision, the RO denied the Veteran's claims of service connection for a low back disability, bilateral shoulder disability, and bilateral knee disability. The Veteran was notified of the decision but did not appeal. 3. In December 2010, the RO received private hospital records related to the Veteran's right knee; these records are deemed new and material. 4. In a June 2011 rating decision, the RO denied, inter alia, the Veteran's claim of service connection for a right knee disability. The Veteran was notified of the decision but did not appeal. 5. Evidence received since the RO's April 2010 rating decision does not relate to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and it does not raise a reasonable possibility of substantiating the claim. 6. Evidence received since the RO's April 2010 rating decision relates to an unestablished fact necessary to substantiate the claims of service connection for a right shoulder disability, for a left shoulder disability, and for a left knee disability and raises a reasonable possibility of substantiating the claims. 7. Evidence received since the RO's June 2011 rating decision relates to an unestablished fact necessary to substantiate the claim of service connection for a right knee disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The Veteran does not have a TBI with memory problems that is the result of injury or disease incurred in active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2014). 2. An April 2010 rating decision that denied service connection for a low back disability, for a bilateral shoulder disability, and for a left knee disability is final. 38 U.S.C.A. § 7105(b), (c) (West 2014); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2014). 3. A June 2011 rating decision that denied service connection for a right knee disability is final. 38 U.S.C.A. § 7105(b), (c) (West 2014); 38 C.F.R. §§ 20.201, 20.302, 20.1103 (2014). 4. New and material evidence has not been received, and the Veteran's claim of service connection for a low back disorder is not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 5. New and material evidence has been received, and the Veteran's claim of service connection for a right shoulder disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 6. New and material evidence has been received, and the Veteran's claim of service connection for a left shoulder disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 7. New and material evidence has been received, and the Veteran's claim of service connection for a right knee disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). 8. New and material evidence has been received, and the Veteran's claim of service connection for a left knee disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2014); 38 C.F.R. § 3.156(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). In VAOPGCPREC 6-2014, VA's General Counsel concluded that the plain language of 38 U.S.C.A. § 5103(a)(1) did not require VA, upon receipt of a previously denied claim, to provide notice of the information and evidence necessary to substantiate the element or elements that were found insufficient in the previous denial of the claim. Instead, VA must provide "generic" and not case-specific notice to a claimant who has filed an application to reopen a previously denied claim. The notice must explain what "new and material evidence" means. Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012) The Board finds that all notification and development action needed to arrive at a decision on the claim of service connection for a TBI with memory problems as well as a petition to reopen the claim of service connection for a low back disability has been accomplished. Through a pre-adjudication notice letter dated in May 2012, the RO notified the Veteran of the legal criteria governing his claim for service connection for a TBI and his petition to reopen the claim of service connection for a low back disability, as well as the evidence needed to substantiate these claims. Thereafter, the Veteran was afforded the opportunity to respond. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate the claims, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the May 2012 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. Additionally, the letter provided the Veteran notice regarding the assignment of effective dates and disability rating elements, as well as explained the meaning of "new and material evidence" and why his claim for service connection for a low back disability had been previously denied. VA has also adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims. The Veteran's service treatment records (STRs) are associated with the claims folder as are his identified private treatment records and various QTC medical reports. This includes a June 2013 private examination report from J. W. Ellis, MD, of the Ellis Clinic. The Board notes that the Veteran has not been provided VA examinations with respect to his claim of service connection for a TBI and his petition to reopen the claim of service connection for a low back disability. VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); 38 U.S.C. § 5103A(d)(2). The United States Court of Appeals for Veterans Claims (Court) further characterized the third requirement of "an indication" that a disability "may be" associated with service as a "low threshold." McLendon, 20 Vet. App. at 83. A VA examination has not been afforded the Veteran in connection with his attempt to reopen the previously denied claim of service connection for a low back disability. The duty to obtain an examination applies only after new and material evidence sufficient to reopen a claim has been received. 38 C.F.R. § 3.159(c)(4)(iii). As will be discussed in more detail below, new and material evidence with respect to the Veteran's claim has not been received. As such, a VA examination is not warranted. With respect to the Veteran's claim for a TBI with memory problems, in May 2012, the Veteran claimed service connection for "brain damage." In a statement dated in June 2012, the Veteran commented: Also, my memory keeps getting worse. I use to be able to remember about everything, but now I forget where I put things. I can't remember names of people I meet [and] sometimes forget names of people I've known all my life. In July 2012, the RO denied the Veteran's claim for service connection for a TBI (claimed as brain damage). In his notice of disagreement, the Veteran stated: VA was wrong to deny my TBI claim without scheduling me an appointment with a neuro psychologist. . . . I told you about the incident when I was on guard duty in Da Nang - when an enemy mortar round exploded right next to me. The Veteran has described in statements that he was in a guard tower when an enemy mortar round landed nearby. During his Board hearing before the undersigned, the Veteran testified: . . . you could hear [the mortar round] incoming and we both got on the floor of the guard tower and it hit about, I don't know, 20, 30 [feet] from our guard tower. When asked by his attorney if he had felt rattled by the explosion, the Veteran replied, "No, we didn't, sir." Otherwise, the Veteran testified that he use to pride himself on remembering things, but as "years go I have more difficulty remember[ing] things." In his June 2013 medical report, Dr. Ellis, who is not a neurologist, notes: [The Veteran] has noticed a decrease in memory in the last ten years. He has even gone to a doctor. He does not remember any explosions except for one occasion when he was near a mortar while on guard in Da Nang. It was not a severe concussion. He does not remember any memory loss, loss of consciousness or being stunned. I cannot connect his decreased memory to his Vietnam or military experience. Dr. Ellis added: I do not find any evidence of a brain injury. In the last several years, he has noticed decreased memory that is beginning to bother him. . . . I recommend he be seen by a neurologist who will evaluate him and possibly obtain an MRI of his brain. I also recommend that he have a medical work up including a thyroid function test. Otherwise, a review of the Veteran's STRs does not reflect a diagnosis or treatment for a head injury. The STRs also do not reflect any report of physical symptoms typically associated with even a mild TBI (i.e., loss of consciousness for a few seconds to a few minutes; no loss of consciousness but a state of being dazed, confused or disoriented; headache; nausea or vomiting; fatigue or drowsiness; difficulty sleeping; sleeping more than usual; or dizziness or loss of balance. See www.mayoclinic.org). At the time of separation the Veteran reported that he was in good health and that he had not suffered a head injury. The Board notes that while the mortar explosion may have been loud, it finds persuasive the Veteran's reported history to Dr. Ellis about the explosion-the concussion of the explosion was not severe, the Veteran was not stunned as a result of the explosion, nor did the Veteran suffer any memory loss or loss of consciousness following the explosion. Otherwise, the Veteran's memory problems have been reportedly present for the last 10 years. As such, there is a lack of evidence to suggest that the Veteran suffered a TBI as a result of the mortar explosion in service. Furthermore, the mere fact that Dr. Ellis suggested that the Veteran be examined by a neurologist does not necessarily require VA to obtain an examination/opinion. The Board does not find supportive evidence that the Veteran has been diagnosed with a TBI nor is there evidence that the Veteran's current memory problems may be associated with service and the mortar explosion in Vietnam. (Parenthetically, the Board notes that the Veteran is service connected for posttraumatic stress disorder. Memory loss is a rating criteria used to evaluate the degree of disability under VA's rating schedule for psychiatric disorders under 38 C.F.R. § 4.130 (2014).) Thus, the Board concludes, per McClendon, that VA's duty to assist does not include providing the Veteran with a VA examination for his claim of service connection for a TBI with memory problems. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim of service connection for a TBI and the petition to reopen the claim of service connection for a low back disability. II. Analysis Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus, or link, between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For chronic diseases listed in 38 C.F.R. § 3.309(a), service connection may also be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was "noted" during service; (2) evidence of post service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptoms. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in 38 C.F.R. § 3.303(b)). As discussed in detail, above, the Veteran alleges that he suffered a TBI with resulting memory problems when, while serving in Vietnam, a mortar round exploded near a guard tower in which he was laying down. The Veteran's STRs do not reflect complaints, symptoms, or a diagnosis associated with a head injury. Otherwise, post-service medical evidence does not reflect a diagnosis of or treatment for a TBI, and the Veteran's memory problems are noted to have first begun some 30 years following his release from active service. Furthermore, there is a lack of any medical opinion evidence linking the Veteran's memory problems to a TBI. The Board also notes that although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case-whether the Veteran suffered a TBI as a result of a mortar explosion in service, falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Likewise, while the Veteran is competent to describe that he has memory problems, he has not reported that his memory problems began in service. He is otherwise not deemed competent in this instance to link his memory problems to his period of service. Id. Therefore, the evidence does not support that the Veteran incurred a TBI with memory problems during his period of active military service or as a result of his active military service. Therefore, the evidence with respect to the claim of service connection for a TBI with memory problems (claimed as brain damage) is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Thus, the claim of service connection for a TBI with memory problems (claimed as brain damage) must be denied. New & Material Evidence New evidence is defined as 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 Court has held that when determining whether submitted evidence meets the definition of new and material evidence, VA must consider whether the evidence received could, if the claim were reopened, reasonably result in substantiation of the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Thus, pursuant to the Court's holding in Shade, evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist to provide a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court has held that 38 C.F.R. § 3.156(a) "must be read as creating a low threshold," and "suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim." Shade, 24 Vet. App. at 117. As noted above, by an April 2010 rating decision, the RO denied the Veteran's claims of service connection for a low back disability, for a bilateral shoulder disability, and for a bilateral knee disability. The Veteran was notified of the decision but did not appeal. As such, the April 2010 rating decision became final with respect to the claims of service connection for a low back disability, for a bilateral shoulder disability, and for a left knee disability. 38 U.S.C.A. § 7105. Otherwise, in December 2010, the RO received private hospital records documenting a diagnosis and treatment for a right knee disability. The Board deems these records as being new and material with respect to the Veteran's right knee claim. See 38 C.F.R. § 3.156(b) (2014). In particular, the records documented a current right knee disability. Thus, the April 2010 rating decision did not become final with respect to the Veteran's claim of service connection for a right knee disability. Thereafter, in a June 2011 rating decision, the RO denied, inter alia, the Veteran's claim of service connection for a right knee disability. The Veteran was notified of the decision but did not appeal; as such, the June 2011 rating decision became final with respect to the Veteran's claim. 38 U.S.C.A. § 7105. In May 2012, the Veteran filed claims of service connection for low back disability, for bilateral shoulder disability, and for bilateral knee disability. Under pertinent legal authority, VA may reopen and review a claim which has been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). Low Back Disability In the April 2010 rating decision, the Veteran's claim of service connection for a low back disability was denied because of the lack of evidence in the Veteran's STRs related to a back condition or post-service evidence of a current low back disability. Evidence received since the final April 2010 rating decision does not provide a diagnosis for a low back disability. The Board finds persuasive that in his report of June 2013 examination, Dr. Ellis noted the following: [The Veteran] states he has never had back pain. He states that when the VFW Officer filled out his form, since he does not have good hearing, he probably may have nodded when he was talking about his back. The Board also finds persuasive that arguments submitted by both the Veteran and his attorney do not include reference to a low back disability. Accordingly, the Board finds that evidence received subsequent to the April 2010 rating decision is not new and material and does not serve to reopen the claim of service connection for a low back disability. Bilateral Shoulder and Bilateral Knee Disabilities The Board finds that new and material evidence has been submitted with respect to the Veteran's claims of service connection for a bilateral shoulder disability and for a bilateral knee disability. In his report of June 2013 examination, Dr. Ellis noted the Veteran's reported history of injuring his shoulders and knees in Vietnam. In particular, the Veteran reported injuring both his shoulders after sliding into second base head first during a softball game. The Veteran also reported falling hard on both knees while carrying another person during a 100 yard race. The Veteran, in statements and hearing testimony, has alleged continued shoulder and knee pain since the injuries in service. Dr. Ellis has diagnosed the Veteran with ligamentous strain and soft tissue injury to his shoulders, ligamentous tears in both knees, plus a meniscal tear in the right knee. Dr. Ellis has linked the Veteran's shoulder and knee disabilities to his period of active service. Here, the basis of the RO's April 2010 and June 2011 denials was the lack of evidence of a current disability and/or a nexus linking a current disability to service. The evidence received subsequent to the final April 2010 and June 2011 rating decisions includes just such evidence in the form of the June 2013 examination report from Dr. Ellis. Therefore, the Board finds Dr. Ellis's June 2013 report of examination to be new as well as material-the examination report (medical evidence) relates to an unestablished fact necessary to substantiate the Veteran's claims of service connection for bilateral shoulder disability and also bilateral knee disability. In other words, the evidence provides support for the Veteran's claim that his shoulder and knee disabilities are related to his period of active service. As a current diagnosis and/or the connection between service and the claimed shoulder and knee disabilities was an element not present in the prior final denial, the Board finds that the evidence is sufficiently material to reopen the Veteran's claims for service connection for a bilateral shoulder disability and for a bilateral knee disability. Shade, 24 Vet. App. at 117. The Board cannot, at this point, adjudicate the reopened claims of service connection for a bilateral shoulder disability or for a bilateral knee disability as further development of the claims is necessary prior to a final adjudication. The specific evidentiary development needed is discussed in detail in the remand below. ORDER Entitlement to service connection for a TBI with memory problems is denied. New and material has not been received to reopen the claim of service connection for a low back disability. New and material evidence having been received, the claim of entitlement to service connection for a right shoulder disability is reopened; to that limited extent, the appeal of this issue is granted. New and material evidence having been received, the claim of entitlement to service connection for a left shoulder disability is reopened; to that limited extent, the appeal of this issue is granted. New and material evidence having been received, the claim of entitlement to service connection for a right knee disability is reopened; to that limited extent, the appeal of this issue is granted. New and material evidence having been received, the claim of entitlement to service connection for a left knee disability is reopened; to that limited extent, the appeal of this issue is granted. REMAND As noted above, the Veteran alleges injury to his shoulders and knees while service in Vietnam. The Veteran reportedly injured his shoulders playing softball when he slid into second base head first, and injured his knees when he fell on them hard carrying another person during a 100 yard race. Following a review of Dr. Ellis' findings and opinion in his report of June 2013 examination, it would appear to the Board that Dr. Ellis did not thoroughly review the Veteran's claims folder prior to rendering his opinions. In particular, with respect to the Veteran's shoulders, Dr. Ellis noted the following in his report: Sliding into the base caused contusions and strains in the ligaments and soft tissues of both shoulders. The strained ligaments continued to be aggravated by gravity and the activities of daily living causing tendonitis in each shoulder. In light of the initial damage described by Dr. Ellis, it is surprising to the Board that the Veteran never sought treatment for his shoulders in service. At the time of separation from service, the Veteran reported that he was in good health, he did not report problems with either of his shoulders, and an examination at that time revealed no abnormality. Dr. Ellis does not discuss this discrepancy in the Veteran's medical history. Furthermore, Dr. Ellis fails to discuss the difference between his findings and a May 2001 private treatment record from T. J. Leckman, MD. In that record, Dr. Leckman notes the following: [The Veteran] has some left shoulder pain. He is seeing a chiropractor for this. I have advised heat and ice to the left shoulder for this rotator cuff strain. He was carrying a heavy pipe on his left shoulder and this is when this was activated. This same history was reported again by Dr. Leckman in June 2001. He noted at that time: [The Veteran] presents with left shoulder pain. He hurt it carrying a pipe and it has never got better. Otherwise, with respect to the Veteran's knees, Dr. Ellis noted the following in his report: [The Veteran] carrying a fellow serviceman and suddenly stopping and falling on his knees put so much force that he sustained tearing ligaments in his knees and the and [sic] meniscus in his right knee. The instability [due] to the torn ligaments in knees caused abnormal stress on the cartilage in his knees which has caused traumatic arthritis in his knees. Again, the Board is surprised that in light of the initial damage described by Dr. Ellis, the Veteran never sought treatment for his knees in service. As noted above, at the time of separation from service the Veteran reported that he was in good health, he did not report problems with either of his knees, and an examination at that time revealed no abnormality. Dr. Ellis does not discuss this discrepancy in medical history. Furthermore, Dr. Ellis fails to discuss the difference between his findings and a February 1986 treatment record from Comanche County Memorial Hospital. The record, associated with the Veteran's right knee arthroscopic surgery, notes the following history: [The Veteran] doesn't know of a definite injury to his right knee. Last year his knee started bothering him quite a bit when playing basketball and, also, while playing baseball or softball. He has had no twisting injury, but the knee stiffens up and he has to pop it. When it pops it feels better. No giving way or clicking. The Board notes that lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997). In light of the evidence and discussion, above, further examination is necessary to better clarify any shoulder and/or knee disabilities and their etiology. On examination, the examiner should specifically address the Veteran's complaints along with his reports of chronic pain since service. He or she should also address the likelihood that the Veteran's reported medical history is consistent with the documented post-service clinical picture (as documented in the above discussion). Otherwise, the Veteran is competent to report injuring his shoulders and/or knees and experiencing pain following any injury. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any private or VA treatment he may have received for his claimed bilateral shoulder and bilateral knee disabilities. After obtaining the appropriate release of information forms, procure records of any treatment the Veteran has received, to include relevant records available through the VA records system. If any such records identified by the Veteran are not available, he should be so informed in accordance with the provisions of 38 C.F.R. § 3.159(e) (2014). 2. After completion of the above (and allowing a reasonable amount of time to obtain any identified records), schedule the Veteran for a VA orthopedic examination. The claims folder and a copy of this remand must be made available to and be reviewed by the examiner in conjunction with his or her examination. Any testing deemed necessary should be performed. The examiner is requested to obtain a detailed history of the Veteran's disabilities with respect to his shoulders and knees. He or she should review the tabbed medical records associated with the claims folder, to include: 1.) A February 1986 treatment record from Comanche County Memorial Hospital associated with the Veteran's right knee arthroscopic surgery (noting that the Veteran did not know of a definite injury to his right knee, and that the year before his right knee had started bothering him quite a bit when playing basketball and, also, while playing baseball or softball). 2.) Both May 2001 and June 2001 treatment records from T. J. Leckman, MD (noting that the Veteran presented with left shoulder pain, that he hurt the left shoulder carrying a pipe, and that his left shoulder had never gotten better). 3.) A June 2013 report of examination conducted by J. W. Ellis, MD (noting ligamentous strains and tears to the Veteran's shoulders and knees, respectively, during service; and his opinion that the Veteran's current shoulder and knee disabilities are related to service). Following an examination of the Veteran and review of the pertinent medical evidence, the examiner should offer his/her opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater), that any disability of the shoulders or the knees had its onset during service or is otherwise related to service. In so opining, the examiner should address the likelihood that the Veteran's reported medical history is consistent with the documented post-service clinical picture, to include the lack of treatment by the Veteran in service and for many years after service. The medical reasons for accepting or rejecting the Veteran's history of injury in service and continued symptoms thereafter should be set forth in detail. The examiner's report must include a thorough explanation for all opinions and conclusions expressed, to include why the examiner could not provide an opinion without resorting to speculation. 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the issues of service connection for a bilateral shoulder disability and for a bilateral knee disability. If the benefit sought is denied, the Veteran and his attorney must be provided a supplemental statement of the case (SSOC) and given an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs